This Terms and Conditions of Use (this “ TCU” or “ Agreement”) sets forth the terms and conditions under which Pulselocker, Inc., a Delaware corporation (“ Pulselocker,” “ we,” or “ us”) provides you (the “ End User” or “ you”) access to, and governs your use of, the website located at pulselocker.com, pulselocker.dj or pulselocker.pl (the “Site”), the Pulselocker applications, SDKs, APIs and widgets made available through the Site (the “ Software”) and the information, content, features and services provided through the Site (together with the Software, collectively, the “ Service”).
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TCU IN A CLICK-THROUGH FORMAT, SIGNIFIES YOUR AGREEMENT TO THIS TCU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TCU, INCLUDING ANY MODIFICATIONS THAT PULSELOCKER MAKES FROM TIME TO TIME. If you do not agree to this TCU, you may not use the Site or the Service.
PREAMBLE: BETA RELEASE OR PRE-RELEASE VERSION
In the event that the Software is a beta release or pre-release version, the terms of this Section shall apply. Your license to use the Software expires 90 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software we intend to distribute. While we intend to distribute a commercial release of the Software, we reserve the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted access to Pulselocker’s User Offerings and simultaneously have access to curated content features and contextual information about the content and its creators. You will also be given the option to participate in a forum whereby users can collaborate and share listening preferences and playlists from their individual profiles. The Service tiers that may be accessed in exchange for fees are currently referred to as the “Basic” and “Professional” tiers, (together the “ Subscription Tiers.”)
Pulselocker may provide all or some of the following offerings at a given time (“User Offerings”):
- On-demand interactive streaming. End Users can stream an unlimited number of songs from within the Pulselocker application and approved Third-Party Applications.
- Limited download and syndication to select Third-Party Applications and services, as part of locker-style service with tiered subscription packages. End Users can play songs within approved Third-Party Applications and services such as Serato DJ1. The number of songs that may be accessed by End Users in Third-Party Applications at any given time may be limited by the End User’s subscription package.
- Non-interactive in-application streaming. End Users can stream music within the Pulselocker application on a non-interactive basis, as defined under the Digital Millennium Copyright Act (Public Law 105-304, October 28, 1998), as now in effect or hereafter amended.
- Pay-per-unit permanent digital download. End Users can pay a set price per song (retail pricing at discretion of Pulselocker) to be able to download a DRM-free copy of the music to a personal device or computer.
Pulselocker reserves the right to add, change, modify, suspend or discontinue any portion of the Service, in its sole discretion, at any time. Your use of any new portion of the Service, including the availability of new services or products through the Site, shall be subject to this TCU. In addition, Pulselocker may impose limits on any portion of the Service or restrict your access to portions of or the entire Site in its sole discretion without notice or liability.2.1. Content Availability.
Pulselocker reserves the right to change content options (including eligibility for particular features) without notice, and at all time must reside in a permitted territory to access the applicable content available in such territory.2.2. Content Owners.
The owners of content (any music, images, video, text, or other material available through the Service) are intended beneficiaries of this Agreement and shall have the right to enforce this Agreement against you. Content Owners may, from time to time, remove content from the Service without notice.2.3. Content Security.
The Software includes a patented security technology which limits your use of certain content and you shall use the Software and Service in compliance with the applicable usage rules established by Pulselocker and its licensors (“ Usage Rules”). Any other use of the Software, Service or content may constitute a copyright infringement. Any security technology is an inseparable part of the Software. Pulselocker reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason—or to attempt or assist another person to do so. Furthermore, you may not circumvent the Software or make use of any third-party software to create unauthorized exports, duplicate copies or derivative works of any content (including but not limited to any music, images, video, text, or other material available through the Service). Usage Rules may be controlled and monitored by Pulselocker for compliance purposes, and Pulselocker reserves the right to enforce the Usage Rules without notice to you. You agree not to access the Service by any means other than through what is provided or authorized by Pulselocker for accessing the Service.2.4. Use of Cached Content.
The “offline mode” of the Service permits you to download temporary copies of content and play it on a mobile device or locally in approved Third-Party Applications for so long as you maintain your subscription to an applicable Subscription Tier.
In an effort to improve the Service, Pulselocker may issue updates to the Software from time to time. You acknowledge and agree that Pulselocker may update the Software with or without notifying you and the terms and conditions herein will apply to such updates.
You are responsible for any internet connection and telecommunication fees and charges that you incur when accessing the Site and/or the Service.
In creating an Account, you shall not (a) select or use the email address or user name of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, or (c) allow any other party to use your Account and/or password except as set forth herein.
You may not share or transfer any Account, but you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone other than a minor child as set forth herein. You agree to immediately notify Pulselocker by sending an email to legal(at)pulselocker.com of any known or suspected unauthorized use(s) of your Account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any Account created for your use, even if such activities were not committed by you. Pulselocker is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password.
Applicable fees for Services may include a periodic (e.g., monthly) subscription fee based on the particular Service requested, transaction fees, taxes/VAT, and additional fees for the purchase of permanent downloads. You agree to pay all fees incurred by you or anyone using an Account you registered or that we created for you. Pulselocker may revise the pricing for the Service at any time. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or Service rendered by, Pulselocker, your Account may be terminated without warning or notice at Pulselocker’s sole discretion. Pulselocker may, from time to time, modify, amend, or supplement its fees and fee-billing policies and procedures, and such changes shall be effective immediately upon posting in this TCU or elsewhere on the Site. All sales are final and all charges from those sales are nonrefundable. Pulselocker will not refund any fees for permanent downloads that you purchase and then fail to download, unless such failure is caused solely by Pulselocker. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.6.2 Promotional Trial Period.
Pulselocker may offer you a one-time, promotional trial period during which you can sample the Service gratis (a “Promotional Trial”). The length of any such Promotional Trial, and the particular Services included may vary from time to time. If you covert to a free tier of the Service (if applicable) or terminate your subscription prior to the expiration of any Promotional Trial, you will not have any financial obligation with respect to your subscription, and you will not be charged for your use of the Service. However, you will be charged for any Services you choose to access that are not included within the Promotional Trial. For example, your Promotional Trial does not include permanent downloads and you will be charged the applicable fee. The Promotional Trial will expire at midnight Coordinated Universal Time on the last day of the Promotional Trial, and your initial paid subscription will automatically be activated at 12:01am on the day following the last day of your Promotional Trial (“ Activation Date”). Each End User is entitled to one Promotional Trial. If you subscribe to a Service after you have already received a Free Trial on such Service, you will be billed immediately upon registration. Promotional Trials are also limited to one per credit card. Should two customers use the same credit card to subscribe to Pulselocker, only the first customer is eligible to receive a Promotional Trial.6.3 Initial Subscription Payment.
By activating a subscription to the Service, you agree that if you do not covert to a free tier of the Service (if applicable) or do not cancel your subscription to the Service before the expiration of your Promotional Trial, you will pay the applicable fees for the tier of the Service that you select upon registration. If you do not covert to a free tier of the Service (if applicable) or do not cancel your subscription to the Service before the expiration of the Promotional Trial, we will charge your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription.6.4 Automatic Subscription Renewal.
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month). At the time of renewal, your credit card will be charged our then-current fees for the applicable subscription tier.
You understand and agree that you have no ownership rights in your Account and Pulselocker may stop offering and/or supporting the Service at any time. Further, Pulselocker may cancel your Account and delete all user specific settings and information associated with your Account at any time, without notice, for any reason or no reason including, without limitation, your violation of this TCU. You may cancel your Account at any time and cancellation will take effect at the end of your subscription term. Pulselocker reserves the right to permanently restrict access to the Site and the Service to any users who have had their Accounts cancelled. Once you have terminated your subscription, we will cease billing until and unless you purchase another product or Service. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge or payment for the subscription term during which you terminate your subscription. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
Subject to all of the terms and conditions of this TCU, Pulselocker hereby grants you a limited, personal, non-exclusive, non-sublicensable, non-assignable revocable license to download, install and use the Software as a component of the Service. The Software may only be used in connection with the Service and in accordance with this TCU and rules, restrictions and/or documentation set forth by Pulselocker from time to time. All modifications and enhancements to the Software and Service remain the sole property of Pulselocker. You understand that Pulselocker, in its sole discretion, may at any time for any reason suspend or terminate any license hereunder and disable any Software you may already have accessed or installed without prior notice. Pulselocker reserves the right to add or remove features or functions to the Software at any time in its sole discretion. You acknowledge and agree that Pulselocker has no obligation to make available to you any subsequent versions of the Software. Notwithstanding anything to the contrary herein, you may not: (a) remove any proprietary notices from the Service or any copy of the Software; (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Pulselocker; or (d) make any false, misleading or deceptive statement or representation regarding Pulselocker and/or the Software or the Service.
Pulselocker permits you to use the Service solely for your own personal use, save in respect of End Users subscribed to a Professional tier of the Service in which case it is acknowledged that Third-Party Applications may be used by End Users to play content in a public venue. For the avoidance of doubt, this does not relieve a public venue of its obligations that may apply to performance rights organizations or any other applicable authorization obligations. You agree not to license, copy, reproduce, “rip”, record, broadcast, create derivative works from, transfer, sell or re-sell any content (including but not limited to any music, images, video, text, or other material available through the Service) information, or services obtained from the Site, Software or Service in a manner not expressly permitted under this Agreement.
You agree that you will not, in connection with your use of the Site, Software or Service, violate any applicable law or regulation. Without limiting the foregoing, you agree not to (a) make available through the Software, Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity); (b) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site and/or the Service or otherwise attempt to disrupt the Site and/or the Service or any other person’s use of the Site and/or the Service; (c) attempt to gain unauthorized access to the Software, Site and/or the Service, Accounts registered to other users, or the computer systems or networks connected to the Site and/or the Service; or (d) use the Site, Software or Service, for anything other than your personal purposes, including without limitation the excessive and/or repeated playing of content (for the apparent purpose increasing royalties paid or ratings as applied to such content). Furthermore, you may not use the Software, Site and/or the Service to develop, generate, transmit or store information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Software, Site and/or the Service, (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; (f) violates any applicable law, regulation or ordinance; (g) makes any false, misleading or deceptive statement or representation regarding Pulselocker and/or the Software, Site and/or the Service or (h) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email information of other Account holders or other Software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Software or Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Software, Site or Service.
You understand that all user-generated data, information, content play history, text, software, graphics, video, messages, tags, or other materials (“ User Content”), whether publicly posted or privately transmitted, on the Software, Site or through the use of the Site or the Service, are the sole responsibility of the person posting or transmitting such content. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User Content that you generate on or in connection with the Software, Site or Service. Pulselocker does not control the User Content posted on the Software, Site or transmitted through the use of the Site to the Service and, as such, Pulselocker does not guarantee, and shall not be responsible for any deficiencies relating to, the accuracy, reliability or quality of such User Content. Further, you acknowledge that Pulselocker may or may not pre-screen User Content that is displayed on the Software, Site or transmitted through the use of the Site or the Service. You understand that by visiting the Site or using the Service, you may be exposed to User Content that you may consider to be offensive, indecent or objectionable. Under no circumstances will Pulselocker be liable in any way for any User Content including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available on the Site or through the use of the Site or the Service.
The Site and the Service are operated by Pulselocker in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
11.1. Links from the Site.
The Software or Site may contain links to websites operated by other parties. Pulselocker provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Pulselocker, and Pulselocker is not responsible for the content available on the other sites. Such links do not imply Pulselocker’s endorsement of information or material on any other site and Pulselocker disclaims all liability with regard to your access to and use of such linked websites.11.2. Links to the Site.
To place a link to the Site on another website, you must adhere to Pulselocker’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Pulselocker’s and/or its licensors’ names and trademarks, (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Pulselocker, (c) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking site, and (d) Pulselocker reserves the right to revoke its consent to the link at any time and in its sole discretion.
The interfaces, content, arrangement and layout of the Site and Software including, but not limited to, the Pulselocker trademark and logo, designs, text, artwork, graphics, images, buttons, user interfaces, information, performance data and other content, and any compilation of the foregoing (“ Pulselocker Intellectual Property“) are the property of Pulselocker, except where otherwise noted, and are protected from copying, imitation, communication, or simulation under U.S. and international laws and may not be reproduced, modified, communicated, displayed, distributed, or transmitted without the prior written permission of Pulselocker. You understand and acknowledge that, by visiting the Site or using the Software, you do not acquire or obtain by implication or otherwise, any license or right to use or make additional copies of any materials or information displayed on the Site or Software. You agree not to display or use any Pulselocker Intellectual Property or third party content located on the Site or Software in any manner not expressly permitted under this TCU.
The Site and the Service are not directed toward children under 13 years of age nor does Pulselocker knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Pulselocker.
THE SITE, SOFTWARE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PULSELOCKER and all owners of Content MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, THE SOFTWARE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE SOFTWARE AND/OR THE SERVICE IS AT YOUR SOLE RISK. PULSELOCKER DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE SOFTWARE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE OPERATION OF THE SITE, THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE, THE SOFTWARE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PULSELOCKER PROVIDES NO WARRANTY OR GUARANTEE OF ANY KIND THAT THE SITE, THE SOFTWARE OR THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PULSELOCKER, ANY OF ITS AFFILIATES OR owners of Content, TOGETHER WITH THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS TCU, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) FOR ANY LOST OR CORRUPTED DATA, LOST PROFITS, LOSS OR DAMAGE TO ANY COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR THE SERVICE, EVEN IF PULSELOCKER AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) THE USE OR THE INABILITY TO USE THE SITE, THE SOFTWARE OR THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, THE SOFTWARE AND/OR THE SERVICE; (E) ANY OTHER MATTER RELATING TO THE SITE, THE SOFTWARE OR THE SERVICE; OR (F) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PULSELOCKER’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE, THE SOFTWARE OR ANY PORTION OF THE SERVICE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE SITE, THE SOFTWARE AND THE SERVICE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Pulselocker and its affiliates shall be limited to the fullest extent permitted by law.
You agree to defend, indemnify and hold Pulselocker, and its successors and assigns, and their respective officers, directors, affiliates, agents and employees, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of or relating to (a) your use or misuse of the Site, the Software or the Service, (b) your breach or alleged breach of this TCU, (c) your violation of any law, rule, regulation or rights of others in connection with your use of the Site, the Software or the Service, or (d) infringement, violation or misappropriation of any copyright, trade secret, or any other intellectual property rights or the violation of any property or privacy right arising from any of the content that you post on the Site or transmit through the Service.
This TCU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 19 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, the Software and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within San Francisco, California and you agree to submit to the personal jurisdiction of such courts.
18.1. Arbitration Procedures.
You and Pulselocker agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this TCU (each a “ Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this TCU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail. Except as otherwise set forth in Section 18.4 below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this TCU, (a) you and Pulselocker may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND PULSELOCKER WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.18.2. Location.
The arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.18.3. Limitations.
You and Pulselocker agree that any arbitration shall be limited to the Claim between Pulselocker and you individually. YOU AND PULSELOCKER AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.18.4. Exceptions to Arbitration.
You and Pulselocker agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Pulselocker’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
19.1. TCU Revisions.
This TCU may only be revised in writing by Pulselocker, or published by Pulselocker on the Site.19.2. No Partnership.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Pulselocker as a result of this TCU or your use of the Site, the Software or the Service.19.3. Assignment.
Pulselocker may assign this TCU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this TCU without Pulselocker’s prior written consent, and any unauthorized assignment by you shall be null and void.19.4. Severability.
If any of the provisions of this TCU is found to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect.19.5. Attorneys’ Fees.
In the event any litigation is brought by either party in connection with this TCU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.19.6. No Waiver.
Our failure to enforce any provision of this TCU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this TCU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.19.7. Construction.
The headings inserted in the Agreement are for convenience only and are not intended to affect the meaning or interpretation of the Agreement.19.8. Notices.
All notices given by you or required under this TCU shall be in writing and addressed to: Pulselocker, Inc., 2225 3rdStreet, San Francisco, California 94107, Attn: Legal & Business Affairs.19.9. Export Administration.
You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively, “ Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.19.10. U.S. Government Rights.
If you are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by this TCU.19.11. Equitable Remedies.
You hereby agree that Pulselocker would be irreparably damaged if the terms of this TCU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this TCU, in addition to such other remedies as we may otherwise have available to us under applicable laws.19.12. Entire Agreement.
This TCU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site, the Software and the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or the Service.
In the event that this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation.
Thank you for taking the time to read all of this. Now get playing!
1 Serato DJ is a registered trademark of Serato Audio Research Limited Co.