iPandora End User License Agreement and Terms of Use
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NO EMERGENCY CALLING: DO NOT USE THE OUTBOUND CALLING SERVICE TO CALL EMERGENCY SERVICES. YOU MUST HAVE ALTERNATIVE COMMUNICATIONS SERIVCES AVAILABLE TO PLACE EMERGENCY CALLS.
THE CALLING SERVICES ARE NOT A SUBSTITUTE FOR TRADITIONAL WIRELINE OR WIRELESS SERVICES AND YOU AGREE THAT YOU WILL NOT USE THE OUTBOUND CALLING SERVICE TO PLACE EMERGENCY 911 CALLS.
THE TEXT MESSAGING SERVICE ENABLES USERS TO [INSERT DESCRIPTION]. NOTE THAT TEXT-TO-911 FUNCTIONALITY IS AVAILABLE IN LIMITED LOCATIONS THROUGHOUT THE U.S. PLACING EMERGENCY CALLS TO 911 IS NORMALLY A BETTER OPTION.
ACCEPTANCE OF THE TERMS OF CONDITIONS OF SERVICE
iPandora, Inc. provides a variety of internet application services that enable communications services, including, but not limited to, text messaging, strange dating, earn reward, and associated websites and mobile applications (“apps” that operate under the names of iPandora, and iPandoraUp (collectively referred to as “Products and Services”). For purposes of these Terms of Use, iPandora, Inc., its subsidiaries, affiliates, and all product lines are interchangeably designated as “iPandora”, “We,” “Our” or “Us”. This Terms of Use is a binding legal contract between you and iPandora and it explains your rights and obligations when you use or download any of Our Products and Services and any information, text, graphics, photos or other materials uploaded, downloaded, or appearing in the Products and Services whether user-generated, provided by Us or by third parties (hereafter “Content”).
Your acceptance of these T&Us and our Privacy Policy, which are explicitly incorporated by reference (collectively referred to as “User Agreements”), is required in order to access and to use Our Content, Products and Services. Please take time to read and familiarize yourself with these T&Us as they will apply to your access and use of Our Content, Products and Services and constitute a binding legal agreement between you and Us.
iPandora’s access to and use of Content in its Products and Services is described in the Privacy Policy, as well as other matters related to the access to and use of information provided to iPandora and derived from your usage of the Products and Services.
Your usage of Our Content, Products and Services is subject to the guidelines described in the T&U.
If you are downloading one of Our apps, by clicking “register”, “agree to”, “sign up”, or similar language as part of the installation process, or if you visit one of Our websites, you acknowledge, accept and agree to be legally bound by our User Agreements. Additionally, you (a) represent to Us that you are not a person barred from using the Products and Services in the United States, nor pursuant to the laws or regulations applicable to you in any jurisdiction relevant to your access to and use of the Products and Services; and (b) agree with the User Agreements.
If at any time you do not agree with our User Agreements, or any amended or updated versions, or if you become dissatisfied with Our Products and Services in any way, your sole remedy is to discontinue the use of the Products and Services. You can delete your account and uninstall any of the applications We provide in connection with the Products and Services from your device. If you need assistance, please contact Us at [email protected].
MODIFICATIONS, REVISIONS AND AMENDMENTS TO THE USER AGREEMENTS
The T&Us and the User Agreements constitute the entire agreement between iPandora and you concerning the subject matter herein and the T&Us or the User Agreements can only be modified by a written amendment signed by an authorized executive of iPandora or by Our posting of a revised or amended version of the T&Us or the relevant User Agreements. Neither a course of dealing or conduct between you and iPandora nor any trade practices shall be deemed to modify these T&Us or the User Agreements. You agree that any notice, agreements, disclosure or any other communications that we send you electronically (including via text and email) pertaining to the Products and Services will satisfy any legal communication requirements and that it is your responsibility to maintain accurate user contact information. Your failure to update such contact information such that notices We send are not received by you will not change the effective date of any material changes described herein.
We may revise and update these T&Us or the User Agreements at any time and, for non-material changes, without notice by publishing the new T&Us. Such non-material changes will be effective upon publication. To the extent that any of the changes to these T&Us or Our User Agreements constitute material changes, we will provide you specific notice of such changes through a notice posted in the Products and Services. The effective date of such material changes will be provided for in Our communication to you. Your continued use of the Products and Services after the effective date will constitute your explicit acceptance of the revised or amended material changes to these T&Us, or Our User Agreements, or the websites associated with Our Products and Services. The version of the T&Us most currently published supersedes any prior T&Us, and can be viewed at: LINK
LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT
YOU MAY USE OUR PRODUCTS AND SERVICES ONLY IF YOU HAVE THE LEGAL CAPACITY TO FORM A LEGALLY BINDING CONTRACT WITH iPandora WHICH INCLUDES, BUT IS NOT LIMITED TO, AGE RESTRICTIONS AS DEFINED BY RELEVANT LAW. IF YOU DO NOT SATISFY THE RELEVANT LEGAL CAPACITY REQUIREMENTS UNDER RELEVANT LAW OR AGREE TO THE TERMS OF SERVICE BELOW, YOU MAY NOT USE THE iPandora WEBSITE, PRODUCTS OR SERVICES OR DOWNLOAD ANY PRODUCTS OR SERVICES.
For users located in the United States, you must be at least eighteen (18) years old in order to accept the T&U, and you must be at least eighteen (18) years old in order to use Our Products and Services.By accepting this T&U, you represent that you are at least eighteen (18) years of age and otherwise able to enter into a valid and binding legal agreement and acknowledge that the T&Us constitute a valid, binding agreement between you and Us, under and pursuant to California law. If you are under the age of eighteen (18) years old, you must not access or use Products or Services. If you are located outside of the United States, you must be of the relevant legal age to enter into a legally binding contracts to use Our Products and Services.
If We become aware that you are using any of the Products and Services in violation of the foregoing, or in violation of other T&Us, We will delete your account or otherwise restrict your access to the Products and Services. If you are aware of someone using Our Products and Services that does not meet the requirements as set out in these T&Us, please contact us at [email protected].
A key component to Our Products and Services include advertisements, which may be targeted to the Content or information you provide, the Products and Services you use, other information generated by your use of the Products and Services, or from third party sources. The types and extent of advertising are subject to change. In consideration for your use and access to the Products and Services, you agree that We and our third party providers and partners may advertise in conjunction with your use of the Products and Services subject to the restrictions herein and in Our Privacy Policy.
You acknowledge and agree with the iPandora policy to provide you with advertisements, including targeted advertisements, either directly or via its partnerships with advertisement providers, such as ad networks, (thereafter “iPandora Commercial Partners” or “Commercial Partners”) to be displayed on any device you use to access and operate the iPandora Products and Services. You acknowledge and agree that iPandora cannot be held liable for any characteristic of the advertisement displayed by iPandora or any of Our Commercial Partners including accuracy, appropriateness, or compliance with any rule and regulation you may be subject to.
Should you subscribe to any iPandora Product and Service with a “lifetime no ad” or “no ad” feature, iPandora’s right to advertise will lapse during your personal usage of the relevant iPandora product to which you have subscribed. You acknowledge that iPandora’s right to advertise will remain unchanged on any Products and Services without the “lifetime no ad” or “no ad” feature to which you have subscribed.
iPandora’S AND iPandora’S COMMERCIAL PARTNERS RIGHT TO DELIVER AND SEND COMMERCIAL MESSAGES
You agree to receive commercial messages from iPandora or iPandora Commercial Partners on any device you use to access and operate iPandora Products and Services and which may be based on characteristics derived from information explicitly or implicitly provided by you to iPandora, such as your location, and which will be treated according to our Privacy Policy. See iPandora’s Privacy Policy at: Privacy Policy. You consent to allow iPandora to associate personal information such as contact names, aliases, telephone numbers, emails, or any unique identification tag from your device for messages you send and receive, provided that iPandora will not use such information for any other purpose, except as disclosed herein and in Our Privacy Policy. You consent to the disclosure of any such information to legal authorities pursuant to these T&Us and the relevant User Agreements including our Privacy Policy.
Commercial messages are messages sent to your iPandora telephone number, account or email addresses for commercial purposes for iPandora or iPandora’s Commercial Partners’ products and services. Commercial messages sent by iPandora or iPandora’s Commercial Partners to your email address will include a one-click opt-out option and otherwise comply with relevant law applicable to such messages.
To the extent that administrative texts are sent by iPandora to any group members relating to using and canceling iPandora’s group texting service, they are to be considered normal business communications under applicable law.
Subject to these T&Us and our relevant User Agreements, We hereby grant you a limited, non-transferable, non-exclusive, non-sublicensable license for access and use of Content, Products and Services. All Products and Services are licensed, not sold, to you. You acknowledge the use of this license is subject to these T&Us as well as Our User Agreements, and that if you do not comply with any of these limitations, We may terminate the license without notice, at no cost to Us, and without any liability to Us.
You shall not use the Content or any Products and Services for any purposes beyond the scope of the license granted in these T&Us and our relevant User Agreements. Without limiting the foregoing and except as otherwise expressly set forth in these T&Us or the relevant User Agreements, you shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Content or the Products and Services, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Content or the Products and Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Products and Services, in whole or in part; (iv) remove any proprietary notices from the Content or the Products and Services; (v) circumvent any security features associated with the Content or the Products and Services; or (vi) use the Content or the Products and Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
iPandora reserves all rights not expressly granted to you in these T&Us and the relevant User Agreements. Except for the limited rights and licenses expressly granted under these T&Us and the relevant User Agreements, nothing in these T&Us and User Agreements grant, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Content or the Products and Services.
iPandora may distribute certain third-party products and services with Our Products and Services. For purposes of these T&Us and relevant User Agreements, such third-party products are subject to their own license terms which will be presented to you at the relevant time. If you do not agree to abide by the applicable terms for such third-party products and services, then you will not be able to use the relevant third-party product or service and you may not be able to use Our Products and Services.
COPYRIGHT, TRADEMARK AND OTHER PROPRIETARY INFORMATION
The iPandora Content, Products and Services provided by iPandora (including, but not limited to: all data, software, IP, design, image, audio, video, and business process) are protected by intellectual property rights, constitute the sole and exclusive intellectual property of iPandora, and protected by US and international laws. You may only use the content, names, and other intellectual property (including copyright and trademarks) provided by Us for purposes directly related to your role as a customer, current or prospective, of iPandora Products and Services.
You may not copy, display, modify or use any of the names, logos and trademarks of our Products and Services, including but not limited to those associated with the iPandora, FreeTone, or TopTopUp offerings, for commercial or non-commercial purposes without first obtaining prior express written permission from an authorized representative of iPandora.
You are not authorized to use iPandora trademarks in any advertising, publicity, or in any other commercial or non-commercial manner without Our prior written consent or except as otherwise explicitly allowed by our User Agreements.
You are not authorized to copy or alter any of the iPandora or iPandora partners’ designs, notices, logos or any other proprietary rights displayed or used in the context of iPandora’s website, or Products and Services.
By generating, downloading, uploading or transmitting any Content in or on iPandora Products and Services, you acknowledge that you have full legal and moral rights to use this content within iPandora Products and Services and you grant to iPandora the right to use this content in any manner iPandora chooses.
Any opinion in any content generated, uploaded, downloaded or transmitted by you on iPandora Products and Services is solely your own and your sole responsibility. You acknowledge and agree that iPandora cannot be held liable for any opinion generated, uploaded, downloaded or transmitted by you or any other parties on or through the iPandora Products and Services.
iPandora reserves the right to remove, at no liability to you or any other party, any content posted on iPandora Products and Services in Our sole discretion. You also acknowledge that iPandora does not have any liability to you or any other parties for failing to remove any content from its Products and Services.
We provide the following separate services where each may have distinct conditions associated with the service as detailed in these T&Us or in the relevant User Agreements:
When you elect to subscribe to the Inbound Service, you may receive one telephone number attributed to your account by iPandora for the use of the Products and Services. You agree to comply with all federal and state laws and regulations of the United States, as well as any law or regulation you may be subject to in any other country with respect to the use of the telephone number assigned to you by iPandora.
You acknowledge and agree that the telephone number assigned to your account by iPandora may be ported outside of the Products and Services only with the explicit consent of iPandora and may not be ported. Number portability may result in additional fees being charged to your account.
iPandora may reclaim any telephone number it assigns to your account and discontinue its availability to you at any time and without liability whatsoever to iPandora. Furthermore, in the event of termination or discontinuance of the Inbound Service for any reason, iPandora will reclaim, without notice and at no cost to iPandora, the telephone number associated with the Inbound Service account.
In certain countries, the Texting Service may enable iPandora users to send and receive SMS and MMS at no charge to iPandora users. We do not make any representations as to what occurs or is offered in other countries outside of the U.S.
ADDITIONAL LIMITATIONS ASSOCIATED WITH THE OUTBOUND SERVICE, INBOUND SERVICE AND TEXTING SERVICE
You acknowledge the right for iPandora to suspend all or part of the Outbound Service, Inbound Service or Texting Service at no liability to iPandora if your usage of iPandora Products and Services is inconsistent with normal use. Normal use will be determined by iPandora in a manner relevant to each separate service offering and subject to iPandora’s sole discretion. In some, but not all, cases, this may mean that services are measured compared to other iPandora users, to industry-wide averages or norms, or to traffic patterns consistent with human as opposed to machine operation. However, iPandora reserves the right to evaluate what it considers normal use according to any single or number of factors and in its sole discretion according to the disclosed or other factors.
If We determine that your usage violates these T&Us or other User Agreements with respect to usage limitations, we may: (a) notify you of the excessive use and demand that it cease immediately, and (b) unilaterally suspend temporarily or indefinitely your access to and use of the relevant service or to all Product and Services where iPandora shall not be liable for any costs, losses or other liabilities associated with such suspension; or (c) demand payment for such usage.
RIGHT TO IMPOSE FEES OR CHARGES
iPandora reserves the right to charge for its Products and Services in its sole discretion. iPandora reserves the right to change pricing and modify or discontinue any of its Products and Services, at any time and without notice. iPandora commits to notify you of the pricing at the time and before completion of purchase. By using the Products and Services, you are accepting the rates charged at the time of use.
In order to use iPandora Products and Services, you will be required to provide data about yourself (thereafter “Account Data”), including but not limited to your name, telephone number, email address, location, device type, and a password that you create. It is your responsibility to keep your Account Data safe, secure, and confidential. It is your responsibility to select a password that is secure and strong. We recommend choosing a password that is difficult for others to predict by creating an unlikely combination of letters, numbers, and symbols, and that is unique from other passwords you may use online.
You represent that any Account Data you provide is true, complete, accurate, and is not fraudulent. You commit to update your Account Data as necessary. You acknowledge and agree that iPandora may unilaterally suspend your access to Our Products and Services, temporarily or indefinitely and at any time and in our sole discretion, if We suspect the provided Account Information is false, incomplete, or inaccurate, or if We suspect fraudulent use of such Account Information.
You consent to the disclosure of any such Account Information, Content or other information related to your use of Our Products and Services. See iPandora’s Privacy Policy.
iPandora is not responsible for the security of your Account Data or unauthorized or fraudulent use of your Account Data. In the case of any unauthorized use of your Account Data, including if the device from which you use the Products and Services is lost or stolen, you agree to notify iPandora of such occurrence immediately upon becoming aware.
When credits used with the Outbound Service, Inbound Service or Texting Service, such credits are applied and charged in increments of one minute, and are rounded up to the next minute regardless of what portion of the next higher minute is consumed.
The Inbound Service and Outbound Service are separately offered and subject to independent payment terms. We do not offer any payment plans where discounts or other favorable pricing is offered to users that subscribe to both the Inbound Service and Outbound Service. Instead, each service offering is independent of the other though you may elect independently to combine such offerings.
OUTBOUND SERVICE AND TEXTING SERVICE PAYMENT TERMS
Per call or per text fees will be displayed at the time of using the Outbound Service or the Texting Service.
In certain cases, our Outbound Service may offer unlimited outbound calls. Calls to Hawaii, Alaska, and some specific carriers or territories may be excluded from unlimited outbound calling offers. Any such limitations will be disclosed in connection with the relevant offer.
The Outbound Service and the Texting Service may be limited, suspended, blocked or restricted by geography, number, duration, or other criteria as determined solely by iPandora at any time and in its sole discretion.
We may offer our Products and Services via subscription billing.
Subscriptions will be offered in periodic intervals of time such as one week, one month, or one year. The subscription interval will be displayed when you confirm your subscription. After you confirm your subscription, the subscription will automatically renew on a periodic basis until canceled.
In order to cancel your subscription, you must login to the App Store or iTunes (for iOS users), or the Google Play Store (for Android users), or the Amazon Appstore (for Kindle users). Once you have subscribed, you cannot cancel your subscription from within our Products and Services.
Subscriptions are billed on a prepaid basis. Each auto-renewal of a subscription is an acceptance of the terms of the subscription for the prepaid period. If you cancel your subscription, your access will end at the end of the prepaid period. Subscriptions cannot be refunded or pro-rated.
If you have any questions regarding your subscription, please contact us at [email protected].
In the United States, we offer various enhanced Services for purchase. In the event that you elect to make a purchase, your payment will be processed by the App Store or iTunes (for iOS users), or the Google Play Store (for Android users), or the Amazon Appstore (for Kindle users). iPandora does not process payments, nor does iPandora store credit card numbers on Our servers for any purpose. iPandora is not responsible for fraudulent use of your credit card under any circumstances. Should a fraudulent charge be made with your Account Information, iPandora is not responsible to provide refunds. Please contact your credit card issuer, or the app store where you made your purchase (Google Play Store, Apple App Store, or the Amazon App Store). As between iPandora and you, you are responsible for any fraudulent use of the Products and Services.
MODIFICATIONS TO AND TERMINATION OF ALL OR PART OF THE SERVICES
iPandora reserves the right, without any liability of any kind to iPandora, to modify, block or terminate all or part of the Products and Services provided by iPandora to you at any time, with or without cause, with or without notice. iPandora also reserves the right to periodically make updates or interrupt service as it deems appropriate.
If at any time you do not agree with or any of Our User Agreements, or any amended or updated versions thereof, or if you become dissatisfied with Our Products and Services in any way, your sole remedy is to discontinue the use of Our Products and Services. You can delete your account and uninstall the iPandora application from your device. If you need assistance please contact Us at [email protected].
USER RESPONSIBILITIES & CODE OF CONDUCT FOR THE PRODUCTS AND SERVICES
By use of the Content, Products and Services, you agree you will use iPandora Content, Products and Services only for yourself and for lawful non-solicitation of commercial activities purposes and in compliance with any relevant law applicable to you. You may only use the Content, Products and Services in the course of your normal usage as a customer, current or prospective.
Any Content or materials distributed by you or any other user is not representative of Our opinions including those of Our employees. iPandora, in its sole discretion, may refuse or remove any Content or materials that in iPandora’s sole opinion violates any iPandora policy or is objectionable, or may terminate or deny your access to Our Products and Services.
You agree not to use any automatic device to access iPandora Products and Services, nor use any device or software to access iPandora Products and Services that may impair the proper usage of iPandora Products and Services.
You acknowledge and agree that the Products and Services will not support short code numbers and/or reverse billing services.
· Send automated queries to any website;
· Download Our Products and Services on any device that you do not own; or
· Using the Contents, Product and Services while driving.
USER RESPONSIBILITIES AND CODE OF CONDUCT FOR OUTBOUND CALLING, INBOUND CALLING AND TEXTING SERVICE
You will not use the Outbound Calling, Inbound Calling and Texting Service to do any of the following:
· Operate under a false identity or by impersonating any person or third-party entity;
OUTBOUND SERVICE AND TEXTING SERVICE USER RESPONSIBILITIES
You agree not to use an automatic dialer in connection with the Outbound Service or an automated process to send and reply to text messages in connection with the Texting Service. You further agree not to send any unsolicited text messages or unsolicited in-app messages, and you further agree not to place any unsolicited phone calls or unsolicited in-app calls, whether or not such messages or calls are commercial or non-commercial in nature.
Using the Outbound Service and Texting Service means that you will:
· Comply with all applicable laws and regulations.
OUTBOUND SERVICE AND TEXTING SERVICE – TELEPHONE CONSUMER PROTECTION ACT
You acknowledge and agree that neither the Outbound Service nor the Texting Service are to be used for solicitations of commercial activities of any kind. You further acknowledge and agree that the Telephone Consumer Protection Act (“TCPA”) prohibits placing commercial calls or send commercial text messages without the recipients’ prior express written consent. The TCPA also prohibits placing calls and sending non-commercial text messages to subscribers of wireless services without recipients’ prior express consent. You acknowledge and agree that for purposes of the TCPA you, and not iPandora, are the call or text message initiator such that if a claim is brought under the TCPA, you, as the call or text message initiator, would face potential liability for any alleged violations of the TCPA.
OUTBOUND SERVICE – TELEMARKETING
You acknowledge and agree that the Outbound Service is not to be used to for solicitations of commercial activities. Using the Outbound Service for telemarketing is a violation of these T&Us. If We become aware of such use, We will terminate you access to and use of the Outbound Service and We reserve the right to also terminate your use of any other of the Products and Services. Telemarketing is regulated at the federal and state levels. Violations of relevant laws and regulations may subject you to legal liability. You acknowledge and agree that for purposes of telemarketing laws, you are initiator of such communications and exclusively responsible for such use in violation of these T&Us.
OUTBOUND SERVICE AND TEXTING SERVICE – INDEMNIFICATION
You agree to indemnify and hold harmless iPandora, its related entities and subsidiaries, employees, agents, officers and directors, affiliates, licensors, successors, and suppliers, service providers, content providers, third-party providers and contractors, and Commercial Partners (collectively the “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Indemnified Parties, arising out of or related to any third party claim, whether brought by private civil litigants, federal, state officials, or other governmental officials, based upon or related to the Outbound Service or the Texting Service, including but not limited to claims alleging violation of: (i) the Telephone Consumer Protection Act; (ii) federal telemarketing laws and regulations; (iii) state telemarketing laws and regulations; or (iv) other federal, state or international laws governing commercial voice or texts or transmitting communications to particular kinds of subscribers or devices.
Your use and access to Our Content, Products and Services is at your own risk. You acknowledge and agree that Our Content, Products and Services are provided to you on an “AS IS” and “AS AVAILABLE” basis.
iPandora, ITS RELATED ENTITIES, AFFILIATES AND SUBSIDIARIES, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, LICENSORS AND SUPPLIERS, SERVICE PROVIDERS, CONTENT PROVIDERS, THIRD-PARTY PROVIDERS AND CONTRACTORS, AND ITS PARTNERS (COLLECTIVELY, THE “iPandora PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY RIGHT, RULE, REGULATION, OR LAW, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ADDITIONALLY, THE iPandora PARTIES DO NOT WARRANT THAT THE PRODUCTS OR SERVICE AND ALL ASSOCIATED SOFTWARE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OMISSION, DEGRADATION OF VOICE OR MESSAGING QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. YOU ARE USING THESE SERVICES AND PRODUCTS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE OR LIABLE FOR ANY LOSS OF DATA, DAMAGE OR HARM TO ANY OF YOUR DEVICES USED TO USE OR ACCESS TO iPandora CONTENTS, PRODUCTS OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM iPandora OR THROUGH OR FROM ITS PRODUCTS OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
EXCEPT FOR AN “IP CLAIM,” WHICH IS SEPARATELY ADDRESSED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER iPandora NOR ITS RELATED ENTITIES AND SUBSIDIARIES, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, AFFILIATES, LICENSORS AND SUPPLIERS, SERVICE PROVIDERS, CONTENT PROVIDERS, THIRD-PARTY PROVIDERS AND CONTRACTORS, NOR ITS PARTNERS (COLLECTIVELY, THE “iPandora PARTIES”) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, GOODWILL, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RESULTING FROM YOUR USE OF THE PRODUCTS OR SERVICES, INCLUDING FAILING TO STORE, FAILING TO TRANSMIT, DELETING OR FAILING TO DELETE ANY INFORMATION GENERATED, DOWNLOADED, UPLOADED OR TRANSMITTED ON iPandora PRODUCTS AND SERVICES. THIS ALSO INCLUDES ANY ALLEGED DAMAGES ARISING IN CONNECTION WITH YOUR USE OF, OR FAILURE TO USE THE CONTENTS, PRODUCTS AND SERVICES OF iPandora OR ANY LINKED SITE.
EXCEPT FOR AN “IP CLAIM,” WHICH IS SEPARATELY ADDRESSED HEREIN, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE iPandora PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO iPandora FOR THE APPLICABLE CONTENTS, PRODUCTS OR SERVICES IN THE SIX (6) MONTHS PRECEDING THE LIABILITY OUT OF WHICH LIABILITY AROSE OR A MINIMUM OF TWENTY FIVE DOLLARS U.S. ($25).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE iPandora PARTIES DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, THE MIS-DELIVERY, OR THE UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY CONTENT. WE ALSO DISCLAIM ANY AND ALL RESPONSIBILITY FOR ANY HARM OF ANY KIND RESULTING FROM DOWNLOADING ANY CONTENT OR PRODUCTS AND SERVICES THROUGH iPandora OR ITS APPS, BY USING ANY SUCH APPS.
THE LIMITS OF LIABILITY SET FORTH ABOVE APPLY EVEN IF ANY LIMITED REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT IN ANY RELEVANT JURISDICTION ANY OF THE ABOVE iPandora DISCLAIMERS OR LIMITATIONS OF LIABILITY ARE NOT PERMITTED, YOU ACKNOWLEDGE AND AGREE THAT ANY LIABILITY (AND DAMAGES) ASSESSED TO iPandora WILL BE LIMITED TO THE LOWEST AMOUNT AND SCOPE LEGALLY PERMISSIBLE IN THE RELEVANT JURISDICTION.
Except for IP Claims, as defined herein, you agree to indemnify and hold harmless iPandora, its related entities and subsidiaries, employees, agents, officers and directors, affiliates, licensors, successors, and suppliers, service providers, content providers, third-party providers and contractors, and Commercial Partners (collectively the “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Indemnified Parties, arising out of or related to any third party claim based upon or related to your use of iPandora’s Products and Services, including but not limited to any breach or violation of these T&Us or any provisions of the relevant User Agreements.
iPandora shall indemnify, defend, and hold harmless you from and against any and all losses, damages, liabilities, and costs (”Losses”) incurred by you resulting from any third-party claim, suit, action, or proceeding that the Products or Services, or any use of the Products or Service in accordance with these T&Us and the User Agreements, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (collectively “IP Claims”), provided that you promptly notifies iPandora in writing of the claim, cooperate with iPandora, and allows TexMe sole authority to control the defense and settlement of such claim.
If such an IP Claim is made or appears possible, you agree to permit iPandora, at iPandora’s sole discretion, to (a) modify or replace the Products or Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for you to continue use. If iPandora determines in its sole discretion that none of these alternatives is reasonably available, iPandora may terminate this T&U and any other User Agreements, in its entirety or with respect to the affected component or part, in the sole discretion of iPandora effective immediately.
This shall not apply to the extent that the alleged infringement arises from: (a) use of the Products and Services in combination with data, software, hardware, equipment, or technology not provided by iPandora or explicitly authorized by iPandora in writing; (b) modifications to the Products and Services not made by iPandora; (c) use of any version other than the most current version of the Products or Services made available to you; or (d) concerns third-party products or services.
You shall indemnify, hold harmless, and, at iPandora’s option, defend iPandora from and against any Losses resulting from any third-party IP Claim based on your, or any user to which you provide access or use of the Products and Services: (i) negligence or willful misconduct; or (ii) use of, or access to, the Products and Services in a manner not authorized or contemplated by these T&Us or the relevant User Agreements; (iii) use the Products and Services in combination with data, software, hardware, equipment or technology not provided by iPandora or authorized by iPandora in writing; (iv) modifications to the Products and Services not made by iPandora; or (v) use of any version other than the most current version of the Products and Services made available to you, provided that you may not settle any third-party IP Claim against iPandora unless such settlement completely and forever releases iPandora from all liability with respect to such third-party IP Claim or unless iPandora consents to such settlement, and further provided that iPandora will have the right, at its option, to defend itself against any such third-party IP Claim or to participate in the defense thereof by counsel of its own choice.
THIS SECTION SETS FORTH YOUR SOLE REMEDY AND iPandora’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED IP CLAIMS, I.E., THAT THE PRODUCTS AND SERVICES INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE LIMITS OF LIABILITY SET FORTH ABOVE APPLY EVEN IF ANY LIMITED REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT IN ANY RELEVANT JURISDICTION ANY OF THE ABOVE iPandora DISCLAIMERS OR LIMITATIONS OF LIABILITY ARE NOT PERMITTED, YOU ACKNOWLEDGE AND AGREE THAT ANY LIABILITY (AND DAMAGES) ASSESSED TO iPandora WILL BE LIMITED TO THE LOWEST AMOUNT AND SCOPE LEGALLY PERMISSIBLE IN THE RELEVANT JURISDICTION.
INBOUND SERVICE – INDEMNIFICATION
You agree to indemnify and hold harmless iPandora, its related entities and subsidiaries, employees, agents, officers and directors, affiliates, licensors, successors, and suppliers, service providers, content providers, third-party providers and contractors, and Commercial Partners (collectively the “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Indemnified Parties, arising out of or related to any third party claim based upon or related to the Inbound Service, including but not limited to: (i) claims alleging negligence (including any reckless or willful misconduct unless prohibited by relevant law), or (ii) claims alleging any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Parties or personnel of the Indemnified Parties (including any reckless or willful misconduct unless prohibited by relevant law.
OUTBOUND SERVICE – INDEMNIFICATION
You agree to indemnify and hold harmless iPandora, its related entities and subsidiaries, employees, agents, officers and directors, affiliates, licensors, successors, and suppliers, service providers, content providers, third-party providers and contractors, and Commercial Partners (collectively the “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Indemnified Parties, arising out of or related to any third party claim based upon or related to the Outbound Service, including but not limited to: (i) claims alleging negligence (including any reckless or willful misconduct unless prohibited by relevant law), or (ii) claims alleging any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Parties or personnel of the Indemnified Parties (including any reckless or willful misconduct unless prohibited by relevant law), or (iii) claims related to any failure, impairment, delay, malfunction, misrouting, non-completion, insufficient data or information, lack of location or other information, related to emergency calls placed to emergency call takers, including calls placed to 911, in connection with the Outbound Service.
THIRD PARTY SERVICES AND PRODUCTS
iPandora Products and Services may interface or be used with third-party products and services. iPandora makes no representation or warranty as to the reliability, security, or performance of any third-party services or products. iPandora does not endorse any of the contents, products or services made available by those third parties and you acknowledge iPandora cannot not be held liable for use, or failure to use, said contents, products or services.
Your use of such third-party contents, products or services is subject to the relevant terms and conditions to be entered into with each of those third parties. In the event action is needed to ensure continuity of those said third-party services, it is your sole responsibility to conduct those actions and you acknowledge iPandora cannot be held liable for failure to conduct those actions.
iPandora is not responsible for voice, messaging, data, Internet, or WiFi charges assessed by mobile operators/carriers or Internet service providers and incurred when accessing iPandora Products and Services. Such charges are the sole responsibility of the user.
CHOICE OF LAW, VENUE, SEVERABILITY, NO WAIVER AND PRECEDENCE
These T&Us and all User Agreements and all matters arising out of or relating to these T&Us, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America (including its statutes of limitations and Delaware’s choice of law statutes, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In the event of a conflict between these T&Us and any of the provisions provided for in our User Agreements, the terms of these T&Us shall prevail. In the event of a conflicts internal to these T&Us where if it is determined that the general terms conflict with a provision specific to a Product or Service, the specific term shall prevail, provided that the intent of these T&Us and User Agreements is that such terms and conditions must be interpreted cumulatively such that a specific term is in addition to general terms. You expressly agree that the exclusive jurisdiction for any claim or dispute arising from the access to or use of the Content, Products or Services resides in the United States District Court for the Northern District of California or a superior court for the State of California located in San Francisco. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. iPandora’s failure to act with respect to a breach by you or others does not waive the iPandora’s right to act with respect to subsequent or similar breaches. You may not assign or transfer any of the User Agreements or any rights hereunder, and any attempt to the contrary is void.
iPandora operates under the laws of the United States. iPandora makes no representation that its Products and Services can be used outside the United States. It is your responsibility to assess whether you can use Our Products and Services in any relevant jurisdiction and you agree to comply with the export and import laws and regulations of the United States and other applicable countries.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and iPandora as a result of this agreement or use of the Products and Services. A printed version of these T&Us, User Agreements or Privacy Policy and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.