The Services provided by HearPlanet, Inc. ("Company"), a California corporation, may be accessed and utilized by you ("User") under the following terms and conditions (the "Agreement"):
ACCESS TO THE SERVICES. Subject to the terms and conditions of this Agreement, the Company may offer to provide certain services through the use of a computer, phone, PDA or other communication device ("Services"), solely for User's own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, information about points of interest, voice content, photos, and any other services the Company performs for or on behalf of User, as well as the offering of any Content through applications and websites provided by HearPlanet. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, service, or content. Company may also impose limits on certain features and services or restrict User's access to parts or all of the Services without notice or liability. Company reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Company website. User shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by User following such notification constitutes User's acceptance of the terms and conditions of this Agreement as modified.
User certifies to Company that if User is an individual (i.e., not a corporation), User is thirteen years of age or older. User also certifies that it is legally permitted to use the Services, and takes full responsibility for the selection and use of the Services. This Agreement is void where prohibited by law, and the right to use the Services is revoked in such jurisdictions. User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to use the Services, including, without limitation, hardware devices, software, and other internet, wireless, broadband, phone or other communication device connection services. User shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and User shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services, including any fees charged for airtime usage and/or sending and receiving "User Content " (as defined below) or related notifications.
COMPANY CONTENT. Company content and Services are intended solely for Users and may only be used in accordance with the terms of this Agreement. All materials displayed, distributed or performed through the use of the Services (including, but not limited to text, software, scripts, graphics, photos, sounds, music, videos, logos, interactive features and the like, also known as "Content") are protected by copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. User shall abide by all copyright notices and trademark, information, and other restrictions contained in any Content accessed through the Services.
User may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part, other than as allowed under intellectual property laws. User may not utilize the Content in any way other than as expressly provided in this Agreement. Company Content may be derived from other sources but is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. User may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of the Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. The foregoing restrictions with respect to Content do not apply to any User's own content. Content provided by third parties may be covered under separate license(s) which may be referenced in this agreement, within our service, or elsewhere.
USER CONTENT. The Company may now or in the future permit Users to provide audio, text, video, voice or other content to be delivered, hosted, shared, performed or otherwise published to other Users (or third parties known to User) that have consented to receive such communications from User ("User Content"). User understands and acknowledges that Company does not guarantee the confidentiality, transmission, or accuracy with respect to any content. User warrants, represents and agrees that it will not contribute any User Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise in violation of any law or any right of a third party. Company reserves the right to modify, reject or disable access to any User Content at any time, for any reason (including, but not limited to, claims or allegations from third parties or authorities relating to User Content).
User shall retain ownership rights in all User Content; however, User hereby grants Company a worldwide, nonexclusive, royalty-free, sublicenseable and transferable license to reproduce, distribute, display, and perform the User Content in connection with the Services and Company's (and its successor's) business. User also acknowledges and agrees that the Service (now or in the future) may enable User Content recipients to forward, save, delete, or reply to that content and User hereby consents thereto. Company does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Company expressly disclaims any and all liability in connection with User Content.
COPYRIGHT INFRINGEMENT. Company respects the intellectual property rights of others. Accordingly, Company has a policy of removing User Content that violates copyright law, suspending access to the Services (or any portion thereof) to any user who uses the Services in violation of copyright law, and/or terminating in appropriate circumstances the account of any user who uses the Site or Services in violation of copyright law. If you believe your copyright is being infringed by a user of the Site or Services, please provide written notice to the Company for notice of claims of copyright infringement: Attn: Copyright Issues, HearPlanet Inc. 568 Howard Street, Fifth Floor, San Francisco, CA 94105 Phone/Fax: (415) 324-8555, or contact us directly at email@example.com.
Your written notice must: (i) contain your physical or electronic signature; (ii) identify the copyrighted work alleged to have been infringed; (iii) identify the allegedly infringing material in a sufficiently precise manner to allow Company to locate that material; (iv) contain adequate information by which Company can contact you (including postal address, telephone number, and e-mail address); (v) contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner's agent, or the law; (vi) contain a statement that the information in the written notice is accurate; and (vii) contain a statement, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner. Please do not send notices or inquiries unrelated to alleged copyright infringement to Company's designated agent.
RESTRICTIONS. User is responsible for all activity in connection with the Services, including User Content, and accessing Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of User's right to Services. User may not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other "phishing" message designed or intended to obtain password, account, or private information from any User. Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. User will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Site or through use of the Services, or any processes that run or are activated while the User is not physically logged in. Further, User shall not run any automated calling robot or system or otherwise misuse the Services to violate any third party rights, e.g. SMS spoofing.
WARRANTY DISCLAIMER. User acknowledges that Company has no control over, and no duty to take any action regarding: which users gains access to the Site; what Site Content or User Content User accesses or receives via the Site or Services; what effects the Site Content or User Content may have on User; how User may interpret or use the Site Content or User Content; or what actions User may take as a result of having been exposed to the Site Content or any User Content. User releases Company from all liability for User having acquired Site Content or User Content through the Site or Services. The Site may contain, or direct User to sites containing information that some people may find offensive or inappropriate. Company makes no representations concerning any Site Content or User Content contained in or accessed through the Site or any Services provided, and Company will not be responsible or liable for the accuracy, transmission, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. ALL USE OF THE SERVICES, SITE CONTENT, SITE, USER CONTENT, AND ANY SOFTWARE SHALL BE AT USER'S OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
REGISTRATION AND SECURITY. As a condition to using Services, User may be required to register with Company and select a password and User name ("Company User ID"). User shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User's account. User may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person (including a fictitious person); or (ii) use as a Company User ID a name subject to any rights of a person other than User without appropriate authorization. Company reserves the right to refuse registration of, or cancel a Company User ID in its discretion.
User shall be responsible for maintaining the confidentiality of User's Company password. Company will not be liable for any losses caused by unauthorized use of User's Company User ID, but User may be liable for the losses of Company or others due to such unauthorized use.
INDEMNITY. User will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from (i) any claim or demand made by any third party due to or arising out of User's access to the Services (including the posting or receipt of User Content), the violation of this Agreement by User, or the infringement by User, or any third party using the User's account, of any intellectual property or other right of any person or entity.
LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, AND NOTWITHSTANDING ANY DAMAGES THAT USER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY USER FOR THE USE OF THE SERVICES OR U.S. $50.00. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO USER.
FEES. Some of the Services or use thereof may require User to pay certain fees. Company shall have no liability to User for any fees incurred in connection with the Services.
TERMINATION. Either party may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend any and all Services immediately, without prior notice or liability. Upon termination, User's right to use or access Services and Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
MISCELLANEOUS. The failure of either party to exercise in any respect any right provided herein shall not be deemed a waiver of any further rights. Company shall not be liable for any failure to perform its obligations where such failure results from any cause beyond Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Company's prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Company in any respect whatsoever.