- Description of APP; Acceptance of Terms; Modification OF TERMS
Company may offer one or more premium services or features within the App that require payment, including by subscription (each service or feature, a “Premium Service”). Each such Premium Service may offer additional content, features and/or functionality that are not otherwise available for free via the App.
- APP LICENSE; APP ACCESS, SUSPENSION AND TERMINATION
Company may in the future update the App to change the material, product and service offerings, App Content, and/or features thereof at any time (an “Update”). Company shall not be liable to any User in any way as a result of any temporary suspension of the App arising from or in connection with an Update. Furthermore, Company is under no obligation to undergo an Update of the App to the extent any App Content, User Content and/or other features or material contained therein or related thereto is out of date. The terms of the License granted to you pursuant to this Section 2 shall apply in full to any Update. Additionally, you agree to promptly download and install any Update that Company makes available through the iTunes App Store or Google Play store or through any other mobile application store or otherwise, as applicable.
Your access to the App may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects. Company is not responsible and will have no liability for any failures of the internet or any data or telecommunications equipment, system or network used in connection with the App. In addition, perfect security does not exist on the Internet or mobile devices; Company cannot and does not guarantee that any Registration Data or other personally identifiable information submitted to the App will not become public under any circumstances.
- USER ACCOUNTS; REGISTRATION DATA; CONSENT TO RECEIVE EMAILS
In order to access and utilize the App, each User will need to register and create a unique User profile account (each, a “User Account”). You agree to create only one (1) unique User Account and that you shall be the sole authorized user of your User Account. You may create a User Account directly through the App, or by logging in through your Facebook account (Facebook will automatically provide the information we need from you). As part of the User Account creation/registration process, Users will be asked to submit certain information such as the User’s name, email, address, phone number, date of birth, User public profile name, User label name, and/or picture, etc., and to create a User Account login password (or to enter your Facebook login password if registering through your Facebook account) (collectively, “Registration Data”). You agree that all Registration Data you provide to Company will be true, accurate, current and complete. Company may from time to time modify or add to the Registration Data information fields required as part of the User Account creation/registration process, and you agree to promptly complete any such additional or modified information fields when requested by Company.
Company will have the right to use your Registration Data in connection with servicing and operating the App. You agree (i) to keep your Registration Data true, accurate, current and complete at all times (and will promptly update your Registration Data as necessary from time to time), (ii) to restrict access by any other person or entity to your User Account, password or other login information, (iii) to not knowingly use the name or email of any other person without authorization, (iv) to not use a User public profile name that is profane, offensive or otherwise inappropriate, (v) to not allow any third party to use your login information, Registration Data or Account, and (vi) to notify Company of any breach of security by promptly sending Company an e-mail to email@example.com. You agree that you will be liable for all activities that occur under your User Account, even if such activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using your User Account, Registration Data or password with or without your knowledge. You acknowledge and agree that certain Registration Data (such as your User public profile name and/or picture) that you provide in connection with the User Account creation/registration process will be publicly viewable by all other Users of the App.
- USER REPRESENTATIONS AND WARRANTIES
You represent and warrant that any User Content and other information that you submit or upload to the App (i) will not be fraudulent or involve the sale of counterfeit or stolen items; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (vi) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
- PUBLIC AREAS; CONDUCT WITH OTHER USERS; PROHIBITED USES OF APP
The App contains User public profiles and labels, chat and other User-to-User messaging functions, and may in the future contain additional communication facilities such as blogs, message boards, news groups, forums and other interactive community-based systems that allow Users to communicate with other Users (collectively, “Public Areas”). You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum. You further acknowledge and agree that submissions made to Public Areas may be publicly available to other Users, and that you will be publicly identified by your User Account public profile name or label name when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
All Users shall be solely responsible for all interactions with other Users of the App. In your interactions with other Users, you agree to conduct yourself professionally, civilly and respectfully at all times. While using the App, you agree that you shall not under any circumstances harass, disparage or make mischief against any other User of the App. You hereby acknowledge and agree that Company does not actively monitor or police the Public Areas or specific interactions between Users of the App (and has no obligation to do so) and you hereby disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User. Notwithstanding the foregoing, Company reserves the right to determine, at its sole discretion, what constitutes harassment or mischief, and where that has occurred, and may, also at its sole discretion, partially or completely deny, suspend or terminate access to the App to any infringing party.
With limiting the foregoing, while using the App, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of Company or other Users, or use information learned from the App to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of Company or any other User outside of the App.
- Submit or upload User Content to the App, or otherwise utilize Public Areas to communicate or distribute information, that is defamatory, profane, infringing, obscene, unlawful, offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Use the App for any purpose in violation of local, state, national, or international law.
- Upload User Content, or files that contain software or other material, that violates the intellectual property rights (or rights of privacy or publicity) of any third party or for which you have not obtained the necessary rights or permissions to use accordingly.
- Upload User Content or files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar software that may damage or infiltrate the operation of any other User’s mobile device.
- Advertise or offer to sell any goods or services for any commercial purpose through the App.
- Conduct or forward surveys, virtual contests, pyramid schemes, or chain letters.
- Impersonate another person or User or knowingly allow any other person or User to use your identification or User Account to utilize the App.
- Repeatedly upload User Content or message other Users (“Spamming”). Spamming is strictly prohibited.
- Download any User Content posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the App.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company or any other User, without the prior written consent of Company or such User.
- Use a robot, spider, manual and/or automatic processes, or devices to data-mine, data-crawl, scrape or index the App in any manner.
- Hack or interfere with the App, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the App for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the App or any App Content.
- Make any use of any App Content or User Content that would infringe the copyright therein.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the App to collect usernames and or/email addresses of Users by electronic or other means.
- Use the App in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Register under different usernames or identities, after your User Account has been suspended or terminated or register under multiple usernames or identities.
- Run any version of the App on a so-called “jailbroken” mobile device.
- Cause or induce any third party to engage in the restricted activities above.
- INTELLECTUAL PROPERTY RIGHTS; STORAGE OF USER CONTENT
You retain all right, title and interest in and to any compliant User Content that you upload onto the App; provided, that you hereby grant to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferrable, assignable, sublicensable (through multiple tiers) license to exercise all copyright, publicity rights, and any other rights you have in such User Content, in any media now known or not currently known in order to operate, perform, promote, advertise, market, and improve upon the App.
You acknowledge and agree that Company may establish general practices and limits concerning use of the App, including without limitation the maximum number of days that User Content posted to the App will be retained by or made available through the App and the maximum disk space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the App. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks and trademarks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the App are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of Company or the applicable owner thereof.
- INFRINGEMENT CLAIMS PROCEDURE
Company respects the intellectual property rights of others and expects all Users to do the same. If you believe, in good faith, that any App Content or User Content is infringing your or any third party’s copyrights or other intellectual property rights, please provide notification of such violation containing the following information (“Infringement Notice”) to Company’s designated copyright agent at: [________], which Infringement Notice must include:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed and an explanation as to why you think an infringement has taken place;
- A description of where the material that you claim is infringing is located on the App;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your Infringement Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Third-Party Content
By using the App, you expressly relieve Company from any and all liability arising from your use of any Third Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third Party Content on the App or the failure of such Third Party Content to function as intended.
- VIRTUAL CONTEST RULES
You acknowledge and agree that the App enables Users to engage in fantasy virtual contests and other gameplay (each, a “Virtual contest”). In connection with the foregoing, you hereby represent and warrant to Company that you have read and understand, and that you shall fully comply with Company’s Virtual contest Rules ([_____]) in connection with each Virtual contest in which you participate (“Virtual contest Rules”), which are hereby incorporated by reference herein and deemed a part hereof.
- TRANSACTIONS AND PAYMENT
The App allows Users to engage in certain economic transactions (e.g., the purchase of certain music artist merchandise) using a credit card, debit card, third-party online payment service such as PayPal, through a mobile device (such as Apple Pay), or other acceptable payment mechanism (“Payment Method”). When you provide information related to a Payment Method to Company, you represent that you are the owner or authorized user of such Payment Method. You agree to provide current, complete, and accurate billing information in connection with your User Account and any Payment Method. You agree that Company and/or a third party may charge your Payment Method for any amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with your User Account as a result of certain purchases that you agree to make through the App. Failure to comply with this provision (including without limitation falsification of any information relating to your User Account or Payment Method) may, at Company’s option, result in immediate suspension or termination of your right to use the App. If your Payment Method expires you will remain responsible for any uncollected amounts.
- RELEASES; DISCLAIMERS; LIMITATION OF LIABILITY; CLASS ACTION WAIVER
Neither Company nor its affiliates or licensors is responsible for the conduct, whether online or offline, of any User of the App and you hereby release Company and its affiliates or licensors from any liability related thereto. Company and its affiliates and licensors will not be liable for any claim, injury or damage arising in connection with your use of the App.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. THE APP IS PROVIDED ON AN “AS IS” and “as available” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY (OR THE APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED SUCH APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE) MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP CONTENT OR USER CONTENT PROVIDED THROUGH THE APP OR THIRD PARTY CONTENT INCLUDED IN, OR LINKED TO, THE APP AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY WEBSITE, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APP OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE APP WILL BE UNINTERRUPTED OR THAT THE APP WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE APP. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APP IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE APP IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR VIRTUAL CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE APP, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER, ANY SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS (INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE), OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR VIRTUAL CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED ($100) DOLLARS.
YOU AND COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING.
- GOVERNING Law