May 1, 2016
The Service includes social and interactive features. In order to use the Service, you need to (a) be 18 or older, (b) have the power to enter a binding contract with us and are not barred from doing so under any applicable laws. You also warrant that any registration information that you submit to us is true, accurate and complete, and you agree to keep it that way at all times.
2. Changes to the Agreements
Occasionally we may, in our discretion, make changes to the Service and Agreements. When we make changes to the Agreements that we consider material, we’ll notify you through the Service. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance of the changes.
3. License and Assignment
The Service and the content provided through it are the property of the Company or the Company’s licensors, and we grant you a limited, non-exclusive, revocable license to make personal, non-commercial use of the Service and to receive the media content made available through the Service in your Local Country, based on the Subscription or Trial, you have selected (the “License”). This License shall remain in effect for a period of 20 years unless terminated by you or the Company.
All content on the Website, including art work, graphics, images, screen shots, text, music, digitally downloadable files, trademarks, logos, product and character names, slogans, and the compilation of the foregoing (“Content”) is the property of the Company and its licensors and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Third party content, including trademarks, trade names, characters, and trademarks and copyrights is the property of the third parties that market or license that content, and is used by the Company subject to license, or subject to the fair use provisions of U.S. copyright or trademark law. This License does not grant you any rights to use the Company’s trademarks, service marks, trade names, logos, domain names, or any other features of the Company brand, whether for commercial or non-commercial use.
Our software applications are licensed, not sold, to you, and we retain ownership of all copies of our software applications even after installation on your Devices. We may assign these Agreements or any part of them without restrictions. You may not assign these Agreements or any part of them, nor transfer or sub-license your rights under this License, to any third party.
You agree to abide by the terms of this Agreement, and not to use the Service (including but not limited to its content) in any manner not expressly permitted by the Terms.
Third party software libraries included in the Service are licensed to you either under these Terms, or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and on our website, where applicable.
We assume no responsibility regarding the accuracy of the Content and use of such Content is at your own risk. We provide no assurances that any reported inaccuracies in any Content can or
will be resolved. By furnishing the Content, we do not grant any licenses to any copyrights, patents or any other intellectual property rights. You agree not to display or use any Content in any publications, in public performances, for any commercial purpose, in connection with products or services that are not those of the Company, in any other manner that is likely to cause confusion among consumers, that disparages or discredits the Company and/or its licensors, that dilutes the strength of the Company’s or its licensor’s property, or that otherwise infringes on the Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Content.
4. User Generated Content
Where available, you may post, upload and/or contribute (“post”) content to the Service, including pictures, text and playlist compilations (“User Content”). You represent that you have the right to post any User Content which you post to the Service, and that such User Content, or its use by us as contemplated by this Agreement, does not violate these Agreements, applicable law, or the intellectual property rights of others. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User Content that you post on or in connection with the Company. This license lasts until you terminate your account, except in the case of User Content that you have published, made public and/or share with others. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content that you post to the Service, except that, where applicable under Local Country law, you agree to waive your right to be identified as the author of any User Content on the Service and your right to object to derogatory treatment of such User Content.
We do not monitor, review, or edit User Content, but reserve the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in our sole discretion, violates these Agreements. We may take these actions without prior notification to you. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
We are not responsible for User Content nor do we endorse any opinion contained in User Content. Please notify us immediately if you believe that any User Content infringes your intellectual property rights, or if you believe that any User Content does not comply with the User Guidelines (Section 6 below) or that your rights under applicable law have been otherwise infringed by any User Content.
In consideration for the rights granted to you under these Terms, you grant us the right (a) to allow the Service to use the processor, bandwidth and storage hardware on your Device in order to facilitate the operation of the Service, (b) to provide advertising and other information to you, if you subscribe to the Free Service, and (c) to allow our business partners to do the same.
You grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide license to use, reproduce, make available to the public, publish, translate and distribute any User
Content that you post on or otherwise provide through the Service.
These Terms are not intended to grant rights to anyone except you and the Company, and in no event shall these Terms create any third party beneficiary rights. Any failure by the Company to
enforce these Terms or any provision thereof shall not waive the Company’s right to do so.
6. User Guidelines
We’ve established a few ground rules for you to follow when using the Service, to make sure the Service is enjoyable for everyone. Please follow these rules and encourage other users to do the
We respect intellectual property rights and expects you to do the same. This means, for example, that the following is not permitted: (a) Copying, reproducing, “ripping”, recording, or making available to the public any part of the Service(s) or content delivered to you via the Service(s), or otherwise any making use of the Service which is not expressly permitted under these Terms; (b) using the Service to import or copy any local files you do not have the legal right to import or copy in this way; (c) reverse-engineering, decompiling, disassembling, modification or creating derivative works based on the Service(s) or any part thereof; (d) circumventing any technology used by the Company, its licensors, or any third party to protect content accessible through the Service; (e) renting or leasing of any part of the Services; (f) circumventing of any territorial restrictions applied by the Company; (g) artificially increasing play count or otherwise manipulating the Services by using a script or other automated process; (h) removing or altering any copyright, trademark or other intellectual property notices contained on or provided through the Service; (i) providing your password to any other person or using any other person’s user name and password.
Please respect us and other users of the Service. Don’t engage in any activity on the Service or upload User Content, including registering and/or using a username, which is or includes material that (a) is offensive, abusive, defamatory, pornographic or obscene; (b) is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to, violations of intellectual property rights, privacy rights or proprietary rights of the Company or a third party; (c) includes personal data of third parties or is intended to solicit such personal data, (d) includes malicious content such as malware, trojan horses or viruses, or otherwise interferes with any user’s access to the Service; (e) is intended or does harass or bully other users; (f) impersonates or misrepresents your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading; (g) uses automated means to artificially promote content; (h) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letter, or similar, including through our inbox; (i) involves commercial or sales activities, such as advertising, contests, sweepstakes, or pyramid schemes; (j) promotes commercial products or services; (k) interferes with the Service, tampers with or attempts to probe, scan, or test for vulnerabilities in the Service or our computer systems or network, or breaches any of our security or authentication measures, or (l) conflicts with the Agreement, as determined by us. You agree that we may also reclaim your username for any reason.
Please be thoughtful about what you make public on the Website. The Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public, as further described in your account settings. Remember that shared or publicly available information may be used and re-shared by other users on the Website or across the web, so please use the Service carefully and manage your account settings regularly. We have no responsibility for your choices to make any actions or material public on the Service or Website.
Where available, your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately.
7. Technology limitations and modifications
We will make reasonable efforts to keep the Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Service, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Service or any function or feature thereof. You understand and agree that the Company has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service.
8. Term and Termination
These Terms will continue to apply to you until terminated by either you or us. We may terminate the Terms or suspend your access to the Service at any time, including in the event of your actual or suspected unauthorized use of the Service or non-compliance with the Terms. If you or the Company terminate the Terms, or if the Company suspends your access to the Service, you agree that the Company shall have no liability or responsibility to you to the fullest extent permitted under applicable law.
We endeavor to provide the best service we can, but you understand and agree that THE SERVICE IS PROVIDED “AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SERVICE AT YOUR OWN RISK. WE DISCLAIM ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, we do not warrant, endorse, guarantee or assume responsibility for any Third Party Applications, Third Party Application content, User Content, or any other product or service advertised or offered by a third party on or through the Service or any hyperlinked website, or featured in any banner or other advertising. You understand and agree that we are not responsible or liable for any transaction between you and third-party providers of Third Party Applications or products or services advertised on or through the Service. As with any purchase of a product or service through any medium or in any environment, you should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from us shall create any warranty on behalf of us in this regard. Some aspects of this section may not apply in some jurisdictions.
10. Limitation of Liability
You agree that, to the extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Service, the Third Party Applications or the Third Party Application content is to uninstall any of our software and to stop using the Service, the Third Party Applications or the Third Party Application content.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, CONSULTANTS, ATTORENYS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER THE COMPANY HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (ii) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO THE COMPANY DURING THE PRIOR THREE MONTHS IN QUESTION.
EXCEPT FOR LIABILITY ARISING UNDER INDEMNIFICATION, EACH PARTYS TOTAL CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR OWING TO YOU HEREUNDER IN THE TWELVE(12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANY LANGUAGE OR PROVISION TO THE CONTRARY, THE COMPANY’S LIABILITY UNDER ANY ACTION ARISING OUT OF OR FROM THIS AGREEMENT SHALL NOT EXCEED $1,000.
12. Entire Agreement and Ambiguities
This Agreement constitute all the terms and conditions agreed upon between you and us and supersede any prior agreements in relation to the subject matter of this Agreement, whether written or oral. Any additional or different terms or conditions in relation to the subject matter of the Agreement in any written or oral communication from you to us are void. You represent that you have not accepted the Agreement in reliance on any oral or written representations made by us that are not contained in the Agreements.
Please note, however, that other aspects of your use of the Service may be governed by additional agreements. That could include, for example, access to the Company or our Community for customer support, access to the Service as a result of a gift card, or free or discounted Trials. Those terms and conditions shall govern only with regard to the aspect of the Service to which they apply, and are distinct from and supplemental to these Agreements, and do not supersede these Agreements. To the extent that there is any conflict between those agreements and these Agreements, these Agreements shall control, except as otherwise provided in these Terms.
Occasionally we may offer you the chance to participate in sweepstakes, contests, and surveys (“Special Promotions”) through the Service. Special Promotions may be governed by terms and conditions that are separate from these Terms. If the provisions of a Special Promotion’s terms and conditions conflict with these Terms, those separate terms and conditions shall prevail.
For purposes of contract interpretation, including resolution of any ambiguity, the parties acknowledge that this Agreement was prepared jointly by their respective attorneys, and therefore the terms of the Agreement should not be strictly construed against either party.
Should any provision of the Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Terms, and the application of that provision shall be enforced to the extent permitted by law.
14. Choice of Law, Mandatory Arbitration and Venue
Unless otherwise required by a mandatory law of any applicable jurisdiction, these Agreements are subject to the law of the State of New York, United States, without regard to choice or conflicts of law principles. Further, you and the Company agree to the exclusive jurisdiction of the state and federal courts in Manhattan, New York to resolve any dispute, claim or controversy that arises from, out of, or in connection with this Agreement, that is not applicable to arbitration.
(1) The Company and you agree to arbitrate all disputes and claims between us and you. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of your use of any services, offers, promotions, or the Website, subsite, microsite or those of our partners.
References to “the Company”, “we” and “us” include our respective subsidiaries, and affiliates, and each of their agents, officers, directors, and employees, predecessors in interest, successors, and assigns. References to “you” include all authorized or unauthorized users of websites, subsites, or microsites, participants or beneficiaries of services, promotions, offers or Devices (collectively “Websites and Services”) under this or prior agreements between us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by your continued use of the Website and Services, or your continued interaction with us (in correspondence and the like), you and the Company are each waiving the right to a trial by jury or to participate in a class action. This agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this agreement.
(2) A party who intends to seek arbitration must first send to the other, by either a reputable overnight carrier or certified mail, return receipt requested, or by email from us to you, if your address is not on file with us, a written Notice of Dispute (“Notice”). Please send us an email under the How to Contact Us section for the Company’s address (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we do not reach an agreement with you to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled.
(3) After we receive your Notice at the Notice Address that you have commenced arbitration, we will reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $400 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, we will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.ADR.org , by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless the Company and you agree otherwise, any arbitration hearings will take place in the county of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, we will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected, then we will:
- pay you the amount of the award; and
- pay your reasonable attorney fees, if any, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(5) The right to attorneys’ fees and expenses discussed in paragraph (4) supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
15. How to Contact Us
For customer service matters, to opt-out of a service or promotion, to request information or help, you may reach us by email at [email protected].