END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Last Updated: May 20, 2015
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed, not sold to you, and that you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the App is provided “as is” without warranties of any kind and Live Media Labs’ liability to you is limited;
- isputes arising hereunder will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 18 of this EULA, you and Live Media Labs are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: your device identifier, location; and
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below.
1. Scope of License
The Service is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, Live Media Labs hereby grants you a personal, limited, revocable, non-transferable license to (a) use the App on compatible, authorized devices that you own or control and (b) access and use the Website, in both instances solely for your own use. You may not make the Service available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, redistribute or sublicense the Service. You may not attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). If you breach these license restrictions or the restrictions set forth in Section 8, or otherwise exceed the scope of the licenses granted herein, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by Live Media Labs that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
- Description. The Service provides live event attendees who register with the Service (“Users”) with the ability to earn incentives and rewards by attending events and using the platform. Users may earn rewards through the use of the Service, including by opting into reward opportunities at concerts and other live events. Some, but not all, rewards may be location-based.
- Consideration. You understand and agree that this EULA is entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
- Changes to this EULA. Live Media Labs reserves the right to revise this EULA in its sole discretion at any time and without prior notice to you other than by posting the revised EULA on the Service; provided that Live Media Labs will endeavor to provide you with prior notice of any material changes to this EULA. Revisions to this EULA are effective upon posting and your continued use of the Service after a revised version of this EULA has been posted to the Service constitutes your binding acceptance of such revised EULA. This EULA will be identified as of the most recent date of revision, and you should visit this page periodically to ensure your continued compliance with and acceptance of the EULA. Notwithstanding the preceding sentences of this Section 2.c, no revisions to this EULA will apply to any dispute between you and Live Media Labs that arose prior to the effective date of such revision.
- Eligibility. The Service is for individuals and non-commercial use only. If you wish to enter into the EULA on behalf of a company or organization, please visit partners.concertpass.net or email email@example.com.
- Children. The Service is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Live Media Labs does not seek to gather information from or about children under the age of 13 through the Service. If you are between the ages of 13 and 18, then you represent and warrant that you have your parent or legal guardian’s permission to use the Service.
3. The Service.
- Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms.
- Service Security. You are prohibited from violating, or attempting to violate, the Service’s security. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Live Media Labs’ sole discretion. Live Media Labs reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
4. Registration and Eligibility.
- Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms and to update the information about yourself promptly, and as necessary, to keep it current and accurate. Live Media Labs reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
The Service seeks to incentivize Users to engage with musicians, artists, venues and other participants in the music community by providing Users with opportunities to win rewards (“Rewards”) through promotions offered through the Service (“Promotions”). Some Promotions will be open to all Users through the App, while others will be available to Users in particular geographic areas or to Users who choose to follow certain artists on the Service. No purchase is necessary to participate in any Promotions. Promotions are void where prohibited or restricted by law where registration or bonding requirements exist. A Promotion entry page will indicate the particular Promotion sponsor, the start and end date and time for the particular Promotion and other terms applicable to the particular Promotion (the “Promotion Terms”). Please read the Promotion Terms before entering a Promotion. The Promotion Terms are hereby incorporated into this EULA by reference. To the extent there is a conflict between this EULA and the Promotion Terms with respect to a particular Promotion, the Promotion Terms will govern.
- Eligibility. Subject to Section 2.e, Promotions are open and offered only to legal residents of the United States. If you win a Promotion, you may be required to provide proof of your eligibility for and compliance with such Promotion as a condition to receipt of the applicable Reward. Live Media Labs employees and their immediate families and/or household members and their respective parent companies, affiliates, and subsidiaries are not eligible to enter any Promotion. Only individuals are eligible for Promotions.
- Rewards. The Reward, its approximate retail value, and the number of winners of Rewards for a particular Promotion will be displayed on the Promotion’s entry page on the Service. Entries and Rewards are non-transferable. Rewards may be subject to third-party terms and conditions. No substitutions are permitted, except that Live Media Labs or the Promotion’s sponsor, as applicable, reserves the right to substitute a Reward of equal or greater monetary value for any Reward displayed on the Promotion’s entry page. The winner of a Promotion (the “Winner”) will be responsible and liable for any federal, state, and local taxes on the value of their Reward as well as any other costs not specifically indicated to be paid by Live Media Labs or Promotion sponsor on the Promotion’s entry page.
- Winning. Winners of each Promotion will be determined as set forth in the Promotion Terms.
- Miscellaneous. Any person attempting to defraud or in any way tamper with any Promotion will be ineligible for Rewards and may be prosecuted to the full extent of the law. Live Media Labs reserves the right to modify this Section 5 in any way or at any time. Live Media Labs reserves the right, in its sole discretion, to shorten, extend, modify, cancel or suspend any Promotion in its sole discretion at any time and without notice, including should viruses, bugs, or other causes beyond their control corrupt the administration, security, or proper play of any Promotion
6. Third Party Materials.
- You understand that by using the Service, you may encounter data, information, applications or materials (including Rewards) from third parties, including other Users (“Third Party Materials”) and other content, including content from Live Media Labs (collectively, “Live Media Labs Content”), that may be deemed offensive, indecent, or objectionable, which Live Media Labs Content may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service at your sole risk and that Live Media Labs will not have any liability to you for content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. You use the Service, and rely upon any Live Media Labs Content accessible through the Service, at your sole risk.
- You agree and understand that the Service contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the Service. No portion of the Service may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you will not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Live Media Labs is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the Service.
- In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Live Media Labs makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws. Live Media Labs, and its licensors, reserve the right to change, suspend, remove, or disable access to such services at any time without notice. In no event will Live Media Labs be liable for the removal of or disabling of access to any such services. Live Media Labs may also impose limits on the use of or access to certain services at any time, in any case and without notice or liability.
7. our Use of the Service and Live Media Labs Content.
- You may access the Service for your entertainment and informational purposes only, and solely as intended through the provided functionality of the Service and as permitted under this EULA
- Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service or any Live Media La
- Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service or Live Media Labs Content without Live Media Labs’ prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Live Media Labs’ express written consent:
- altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
- using any trademarks, service marks, design marks, logos, photographs or other content belonging to Live Media Labs or obtained from the Service.
- You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Live Media Labs Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
- You agree not to undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or Live Media Labs Content or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by this EULA, the authorized features of the Service or Live Media Labs Content, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Live Media Labs.
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or Live Media Labs Content, or any portion thereof, through any other application or website, unless and solely to the extent Live Media Labs makes available the means for embedding any part of the Service or Live Media Labs Content.
- You agree not to access, tamper with, or use non-public areas of the Service, Live Media Labs’ (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Live Media Labs’ providers.
- You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Live Media Labs employees.
- You agree not to provide any false personal information to Live Media Labs.
- You agree not to create a false identify or impersonate another person or entity in any way.
- You agree not to create a new account with Live Media Labs, without Live Media Labs’ express written consent if Live Media Labs has previously disabled an account of yours.
- You agree not to solicit, or attempt to solicit, personal information from other users of the Service.
- You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users of the Service.
- You agree not to use the Service, without Live Media Labs’ express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.
- You agree not to gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
- You agree not to post, transmit or otherwise make available, any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or Live Media Labs Content or communications equipment and computers connected to the Service.
- You agree not to interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers.
- You agree not to violate any applicable federal, state or local laws or regulations or this EULA through the use of the Service.
- You agree not to assist or permit any persons in engaging in any of the activities described above.
8. Third Party Software
The App consists of a package of components, including certain third party software (“Third Party Software” and together with the Service , the “Package”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
The Service, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of Live Media Labs and its licensors. Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or will be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Live Media Labs or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Live Media Labs, you agree that:
- Live Media Labs has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Live Media Labs is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Live Media Labs and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
If you become aware of any security vulnerability in the Service or Live Media Labs Content, please provide us Feedback at firstname.lastname@example.org.
This EULA is effective until terminated by you or Live Media Labs. Your rights under this EULA will terminate automatically without notice from Live Media Labs if you fail to comply with any term(s) of this EULA. You may terminate this EULA by uninstalling the Service. Upon any termination of this EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App. You will not be able to use the Service without re-registering, unless prohibited from re-registering by this EULA.
You will indemnify and hold Live Media Labs, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service, or Live Media Labs Content, or (b) your violation of this EULA. Live Media Labs will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Live Media Labs is unable to communicate with you in a timely manner because of an inactive e-mail address for you, your indemnification obligation will continue notwithstanding Live Media Labs’s inability to contact you in a timely manner.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PACKAGE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PACKAGE, AND ANY SERVICES OR REWARDS AVAILABLE THROUGH THE PACKAGE, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LIVE MEDIA LABS HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PACKAGE AND ANY SERVICES OFFERED BY LIVE MEDIA LABS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LIVE MEDIA LABS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PACKAGE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PACKAGE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PACKAGE WILL BE UNINTERRUPTED OR ERROR-FREE OR NOT INTERFERE WITH YOUR USE OR ENJOYMENT OF ANY OTHER APPLICATIONS ON THE DEVICE ON WHICH THE PACKAGE IS INSTALLED, OR THAT DEFECTS IN THE PACKAGE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LIVE MEDIA LABS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS EULA. SHOULD THE PACKAGE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
14. LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL LIVE MEDIA LABS OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PACKAGE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LIVE MEDIA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL LIVE MEDIA LABS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
15. THIRD PARTY DISPUTES
LIVE MEDIA LABS IS NOT AFFILIATED WITH ANY CARRIER, OR SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE APP, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE LIVE MEDIA LABS (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, EMPLOYEES, SUCCESSORS, AND ASSIGNS) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
16. Dispute Resolution
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND LIVE MEDIA LABS AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Live Media Labs, to you via any other method available to Live Media Labs, including via e-mail. The Notice to Live Media Labs should be addressed to Live Media Labs Inc. 330 E. 38th St. Suite 12C, NY, NY 10016 Attn: Chief Operating Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Live Media Labs do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Live Media Labs may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Live Media Labs, then Live Media Labs will promptly reimburse you for your confirmed payment of the filing fee upon Live Media Labs’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and Live Media Labs agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND LIVE MEDIA LABS AGREE THAT YOU AND LIVE MEDIA LABS 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply New York state law in conducting the arbitration. You acknowledge that these terms and your use of the App evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Live Media Labs seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this EULA by Live Media Labs or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Live Media Labs, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
- Claims. You and Live Media Labs agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against Live Media Labs must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Live Media Labs may recover attorneys’ fees and costs up to $5,000, provided that Live Media Labs has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- Modifications. In the event that Live Media Labs makes any future change to the Mandatory Arbitration provision (other than a change to Live Media Labs’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to Live Media Labs’s Arbitration Notice Address, in which case your account with Live Media Labs and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this EULA.
- Enforceability. If only Section 18.a.iii or the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to this EULA.
17. Governing Law.
New York state law, excluding its conflicts of law rules, governs this EULA and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
18. Claims of Copyright and Other Intellectual Property Infringement.
- Respect of Third Party Rights. Live Media Labs respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Live Media Labs’ intellectual property policy is to (i) remove or disable access to material that Live Media Labs believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any content uploaded to the Service by “repeat infringers.” Live Media Labs considers a “repeat infringer” to be any user that has submitted content or Feedback to or through the Service and for whom Live Media Labs has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such content or Feedback. Live Media Labs has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Live Media Labs’ own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Live Media Labs with the user alleged to have infringed a right you own or control and the general public, and you hereby consent to Live Media Labs making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Live Media Labs to locate the material;
- Information reasonably sufficient to permit Live Media Labs to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Live Media Labs’ designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at email@example.com and 330 E. 38th St. Suite 12C, NY, NY 10016.
- Counter Notification. If you receive a notification from Live Media Labs that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Live Media Labs with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Live Media Labs Designated Agent through one of the methods identified in Section 13(d) and include substantially the following information:
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Live Media Labs may be found, and that the subscriber will accept service of process from the person who provided notification under Section 13(c) above or an agent of such person.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Live Media Labs in response to a Notification of Claimed Infringement, then Live Media Labs will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Live Media Labs will replace the removed Content or Feedback or cease disabling access to it in 10 business days, and Live Media Labs will replace the removed Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Live Media Labs’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Live Media Labs’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Live Media Labs] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
U.S.C. § 512(f).
Live Media Labs reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act or the procedures set forth in this Section 18 should be sent to the Designated Agent at firstname.lastname@example.org or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Live Media Labs, the Service or any other matter should be sent to email@example.com.
You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior written consent of Live Media Labs. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Live Media Labs may assign this EULA, including all its rights hereunder, without restriction.
The provisions of this EULA that are intended to survive the termination of this EULA by their nature will survive the termination of this EULA, including, but not limited to, Sections 3 (The Service), 9 (Ownership), 10 (Feedback), 11 (Termination), 12 (Indemnity), 13 (No Warranty), 14 (Limitation of Liability), 15 (Third Party Disputes), 16 (Dispute Resolution), 17 (Governing Law), 18 (Assignment), 20 (Survival), 21 (Consent to Electronic Communications), 22 (Miscellaneous), and 23 (Contacting Live Media Labs).
21. Consent to Electronic Communications.
23. Contacting Live Media Labs.
You can contact Live Media Labs, Inc. by email at firstname.lastname@example.org, or by U.S. post at 330 e. 38th St. Suite 12C, NY NY 10016.
NOTICE REGARDING APPLE.
You acknowledge that this EULA is between you and Live Media Labs only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Live Media Labs provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.