THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
You understand that you are using a beta version of the App and that we are likely to make changes to the App before we make the App generally available for use. As a beta tester, you are obtaining early access to the App. As a beta tester, we may ask you for your input regarding the App from time to time. Any such feedback you provide will become the property of Endless Riff and we may use it for our business purposes, including without limitation to improve the App.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
You acknowledge and agree that virtual reality applications, platforms and headsets may result in some health and safety risks. You should consult your physician before using the App, including the Headsets if you are pregnant, elderly, or suffer from a heart condition or other serious medical condition. You should stop using the App and contact your physician immediately if you feel any of the following symptoms: dizziness, nausea, motion sickness, seizures, disorientation, visual abnormalities, fatigue, discomfort or any symptoms similar to motion sickness. You should also take a moment to review the risks/warnings that may be provided by the manufacturers and/or suppliers of the Headsets. By accessing and using the App, you acknowledge that you are aware of, and assume these risks, and release Endless Riff from any and all liability, claims, or actions that arise from your use of the App, including any Headsets.
USE OF HEADSETS
You understand and acknowledge that there are certain health and safety risks associated with the use of virtual reality headsets (“Headsets”) and that by using those Headsets, you are assuming those risks. Please consult your Headset documentation for such risks or visit the manufacturer’s/supplier’s website.
ENDLESS RIFF, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE HEADSETS OR THE SUPPLIER’S OR MANUFACTURER’S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO ANY HEADSETS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST. ENDLESS RIFF EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM SUCH MANUFACTURERS’ AND/OR SUPPLIERS’ ACTS OR OMISSIONS IN CONNECTION WITH ANY HEADSETS AND/OR YOUR USE THEREOF.
You agree to comply with any and all health and safety-related best practices (and all updates thereto) that may be provided by the manufacturers and/or suppliers of the Headsets.
DESCRIPTION AND USE OF THE APP
The App. The App provides a networked platform of fans, music venues, vendors, and sponsors that houses the world’s live music content.
Fees. The App is currently provided to you for free. However, we reserve the right to begin charging fees at any time upon notice to you.
USE OF PERSONAL INFORMATION
By accessing and/or using the App, you hereby agree that:
You will not use the App for any unlawful purpose;
You will not upload, post, e-mail, transmit, or otherwise make available any content that:
infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, or promotes extreme violence or cruelty to animals, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will not “stalk” or otherwise harass another;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with or attempt to interrupt the proper operation of the App through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the App and the Services through hacking, password or data mining, or any other means;
You will not access or use the App to collect any market research for a competing business;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the App;
You will not use any robot, spider, scraper, or other automated means to access the App for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the App for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
We have the right, but not the obligation, to review and reject or remove content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the App, or to any portion of the App, without notice.
If you would like to use the App, you will need to download the App from the Apple, Android or any other app store through which the App is made available to you using your app store credentials. However, if you have expressed interest in participating in our beta program, you will receive an invitation by email and you will have to follow the instructions in the email to join our beta program. Upon downloading or accessing the App, you will be required to register by creating an account. During the registration process, you will be asked to provide your email address and create a user name and password for your account. You represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information. You are responsible for the confidentiality of your account. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason. We are under no obligation to accept any individual as a user of the App, and may accept or reject any registration in its sole and complete discretion.
Once you setup your account, you will be able to set up a character for use within the App (your “Avatar”) and choose your Avatar’s name. You shall not allow anyone to use your Avatar and you shall not obtain, attempt to obtain, use or attempt to use anyone else’s Avatar. You are responsible for any liability incurred by you, Endless Riff, or anyone else due to the Avatar you choose. We reserve the right to reject any Avatar we determine, in our sole discretion, is unlawful, indecent, obscene, discriminatory, or otherwise violates any part of this Agreement.
The App contains materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other materials provided by or on behalf of Endless Riff (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and
other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the App automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Endless Riff (“Endless Riff Trademarks”) used and displayed on the App are registered and unregistered trademarks or service marks of Endless Riff. Other company, product, and service names located on the App may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with the Endless Riff Trademarks, the “Trademarks”). Nothing on the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Endless Riff Trademarks inures to our benefit.
Elements of the App are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
USER GENERATED CONTENT; LICENSES
The App may provide you the ability to post and upload content (collectively, the “User Generated Content”). You expressly acknowledge and agree that once you submit your User Generated Content for inclusion into the App, it will be accessible by others, and that there is no confidentiality or privacy with respect to such User Generated Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT ENDLESS RIFF, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER GENERATED CONTENT THAT YOU UPLOAD, POST, E- MAIL, OR OTHERWISE TRANSMIT VIA THE APP.
You retain all copyrights and other intellectual property rights in and to your own User Generated Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Generated Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your User Generated Content, your name, likeness, and photograph in connection with any use of the related User Generated Content permitted by the previous sentence and/or to advertise and promote the App, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your User Generated Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such User Generated Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
If you submit User Generated Content to us, each such submission constitutes a representation and warranty to Endless Riff that such User Generated Content is your original creation (or that you otherwise have the right to provide the User Generated Content ), that you have the rights necessary to grant the license to the User Generated Content under the prior paragraph, and that it and its use by Endless Riff
and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guideline
COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
ACCESSING AND DOWNLOADING THE APP FROM ITUNES
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Endless Riff and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Endless Riff.
You acknowledge that, as between Endless Riff and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You 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.
NO WARRANTIES AND LIMITATION OF LIABILITY
NONE OF ENDLESS RIFF, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “ENDLESS RIFF PARTIES”) ENDORSE ANY MUSIC, VENUE, AGENCY, ARTIST, AND ANY CONTENT, ANY USER GENERATED CONTENT AND ANY CONTENT PROVIDED BY ANY VENUE, AGENCY, AND ARTIST THROUGH THE APP. YOU ACKNOWLEDGE THAT THE APP MERELY ACTS AS A PLATFORM THAT HOUSES WORLD’S LIVE MUSIC CONTENT. NONE OF THE ENDLESS RIFF PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY TRANSACTION, COMMUNICATION OR INTERACTION BETWEEN YOU AND THE VENUE, AGENCY, ARTIST OR OTHER USERS OF THE APP OR FOR ANY RESULTS CAUSED BY USING THE APP, INCLUDING WITHOUT LIMITATION, ANY DEATH, BODILY INJURY OR HEALTH PROBLEMS YOU MAY SUFFER. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING SENTENCE DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.
YOU ACKNOWLEDGE AND AGREE THAT THE APP, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED "AS IS," "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION ACCESS AND USE THE APP OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE APP OR THE CONTENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE APP MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE APP. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE APP AT ANY TIME WITHOUT NOTICE.
TRANSACTIONS VIA THIRD-PARTY DISTRIBUTION PLATFORMS
You may execute orders for Endless Riff products and services (e.g., purchasing the App, subscribing to Content, etc.) via third-party distribution platforms, including but not limited to, Oculus and Samsung.
FROM ENDLESS RIFF’S ACTS OR OMISSIONS IN CONNECTION WITH ANY SUCH PRODUCTS AND/OR SERVICES OR YOUR USE THEREOF.
The App may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold harmless us, our affiliates, and our third-party distribution platforms and our and their respective officers, directors, employees, agents, successors, licensees, and assigns from and against any losses, costs, expenses, liabilities, claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content, the User Generated Content, the Platform or the App; or (iii) your violation of any third-party right, including without limitation any intellectual property, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
COMPLIANCE WITH APPLICABLE LAWS
The App is based in the United States. Endless Riff makes no claims concerning whether the App, the Content and/or the User Generated Content may be viewed or be appropriate for use outside of the United States. If you access the App, the User Generated Content and/or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the App, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the App at any time without prior notice or liability.
If you believe the App contains any Content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed;
A description of where the material that you claim is infringing is located on the App;
Your address, telephone number and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.
To contact our Copyright Agent by regular mail, please write to: Copyright Agent
Endless Riff Entertainment, LLC
P.O. Box 3255 Memorial Station
Upper Montclair, NJ 07043
To contact our Copyright Agent by email, please write to email@example.com., with COPYRIGHT NOTICE in the subject line.
In the event of a dispute arising under or relating to this Agreement or the App or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All
disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Endless Riff from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Endless Riff’s proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement is governed by the internal substantive laws of the State of New Jersey, without respect to its conflict of laws provisions. The following Section shall survive any termination of this Agreement: “Disclaimer,” “Use of Headsets,” “Intellectual Property,” “Communications with Us,” “No Warranties; Limitation of Liability,” “No Warranties and Limitation of Liability,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
You consent and agree that your clicking of the “I ACCEPT” button constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Agreement.
Copyright 2017 Endless Riff Entertainment, Inc. All rights reserved.