Last Updated: September 1, 2020
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PLAYLIST WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
- Copyright and License.
- The Service contains the valuable proprietary content of Playlist and its licensors and users and is protected by copyright and other intellectual property laws and treaties. You agree not to use the Service except in its intended manner in accordance with these Terms.
- Subject to the terms, conditions and limitations set forth in these Terms, Playlist grants you a limited, non-exclusive, non-transferable and non-sublicensable license to use the App on any mobile device that you own or control and to access and use the Service solely for your personal, noncommercial use. The terms of the license will also govern any upgrades provided by Playlist that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
- License Limitations. You agree not to do, or authorize or permit any third party to do, any of the following: (i) distribute or make the App or the Service available over a network; (ii) rent, lease, lend, sell, redistribute or sublicense the App or the Service; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App or the Service, any updates, or any part thereof (except as and only to the extent any foregoing restrictions are prohibited by applicable law); (iv) modify, alter or create any derivative works of the App or the Service; (v) resell or make any commercial use of the App or the Service; (vi) use any data mining, robots or similar data gathering or extraction methods; (vii) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the App or the Service; or (viii) use the App or the Service other than for its intended purpose. If you violate any of the foregoing restrictions, your use of the App and the Service will be unlicensed and will infringe the copyright and other rights of Playlist, which may subject you to prosecution and damages. Playlist reserves all rights not expressly granted to you herein.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY PLAYLIST. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age.
- Consent to Mobile Communications. You consent to our communicating with you about the Service or in connection with the features, functions and activities contained therein by SMS, text message, email or other electronic means. Your carrier's normal, messaging, data and other rates and fees will apply to these communications.
- Copyright Complaints. If you believe that anything in the App infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below:
Name of Agent Designated to Receive Notification of Claimed Infringement: Steve Petersen
Address of Designated Agent: 3130 Alpine Rd, Suite 288-108, Portola Valley, CA 94028
Telephone Number of Designated Agent: (408) 462-1639
E-Mail Address of Designated Agent: firstname.lastname@example.org
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
- Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, Playlist has adopted a policy of terminating, in appropriate circumstances and at Playlist's sole discretion, subscribers or account holders who are deemed to be repeat infringers. Playlist may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement
- Trademarks. PLAYLIST, the Playlist logo and any other Playlist product or service name or slogan referenced in the Service are trademarks of Playlist, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Playlist or the applicable trademark holder. In addition, the look and feel of the Service is the service mark, trademark and/or trade dress of Playlist and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Playlist names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
- Third Party Sites and Services; Third Party Materials. The Service may provide links to third party websites, applications, mobile services or other third party services ("Third Party Services") and may also display, link to or otherwise make available through the Service third party music, content, data, information, events, applications or materials ("Third Party Materials"). Playlist does not endorse or control and makes no representations or warranties of any kind regarding any Third Party Services or Third Party Materials, including regarding the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality, or any other aspect thereof. If you access or use any third party web site, you should be aware that Playlist's terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third party web site to which you navigate from the App.
- Third Party Interactions. Your use of the Service and your contact, interaction, or dealings with any third parties arising out of your use of the Service is solely at your own risk. You acknowledge and agree that Playlist is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as the result of the Service, including from any contact with third parties who may locate you through your use of the Service.
- User Content and Conduct. Users are solely responsible for all photographs, comments, and other content (collectively the "User Content") they upload or use in connection with the Service, or that are posted or transmitted using their account, as well as for their conduct and the conduct of anyone using their account. If you post or transmit User Content of any kind using the Service, you agree that such User Content:
- will not infringe or violate the rights of any third party (including copyrights, trademarks and rights of privacy or publicity),
- will not violate any applicable law, rule or regulation,
- will not include any advertising or commercial content; and
- will not be unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, harmful, abusive, inflammatory, false, misleading, fraudulent or otherwise objectionable or contain any viruses, corrupted data or other harmful, disruptive or destructive files.
You further agree not to use the Service in any manner or engage in any conduct that could cause harm to anyone, could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service, could damage, disable, overburden, impair or circumvent the intended the functioning of the Service in any manner, or that makes any commercial use of the Service, including:
- harassing, abusing, stalking, intimidating, offending, harming, threatening, defaming, defrauding, or causing discomfort to other users
- infringing or violating the rights of any third party;
- distributing or posting advertising, product placements, spam, unsolicited or bulk commercial electronic communications, chain letters, pyramid schemes;
- providing or accepting any payment, consideration or commercial benefit of any kind in connection with use of the Service, including for creating a playlist or adding songs to a playlist,
- to impersonate another person or misrepresent your affiliation with a person or entity;
- to violate the privacy or data protection rights of any third party; or
- for any illegal or unauthorized purpose, to engage in or promote any illegal activity or in violation of any applicable law, rule or regulation.
- Indemnification. You agree to defend, indemnify and hold harmless Playlist, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any User Content you create, post, store or otherwise transmit on or through the Service, your conduct in connection with the Service, your violation of this EULA, or your violation of the rights of any third party.
- Termination or Modification of Service. Playlist reserves the right to change, suspend, remove, discontinue or disable access to the Service at any time without notice. In no event will Playlist be liable for the removal of or disabling of access to any portion or feature of the Service.
- Termination of EULA. Either party may terminate this EULA at any time for any reason or for no reason immediately upon notice. Playlist may also discontinue the Service, in which case this EULA shall terminate automatically without notice. In the event of the termination of this EULA for any reason: (a) the license granted to you in this EULA will terminate; (b) you must immediately upon receiving any notice of termination cease all use of the Service and destroy or erase all copies of the App in your possession or control; and (c) Sections 1, 2(a) 3, 4, 5, 6, 7, 8, 9,10, 11, 12, 13, 14,15, 16, 17, 18, 19, and 20 of this EULA shall survive any such termination. Any use of the Service after termination is unlicensed and is in violation of the copyright and other rights of Playlist.
- Your Account. When you create an account, you agree to: (a) provide accurate, current and complete information about you as may be prompted when you register ("Registration Data"); (b) maintain the security of your password and identification; and (c) maintain and promptly update the Registration Data to keep it accurate, current and complete. You are responsible for making sure that you keep your password secure and safe, and you accept all responsibility for any activity that occurs through your account, with or without your knowledge. You agree that you will not do anything that might jeopardize the security of your account, including sharing your password with or logging in through unauthorized third-party applications or clients. If you use any such application or client, you acknowledge and agree that we will bear no responsibility for any actions taken by those applications or clients, such as any breach of or unauthorized use of your account information or messages.
- DISCLAIMERS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. PLAYLIST HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, EITHER EXPRESS, IMPLIED OR ARISING BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PLAYLIST DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY PLAYLIST OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME STATES DO NOT ALLOW LIMITATION OF IMPLIED WARRANTIES A CONSUMER, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PLAYLIST BE LIABLE ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PLAYLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL PLAYLIST’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE EXCEED ONE DOLLAR. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH PLAYLIST, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of any product or service provided by Playlist that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms set forth below (the “Arbitration Agreement”), except that neither of us are required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This Arbitration Agreement applies to you and Playlist, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is ten thousand U.S. dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Playlist, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Playlist.
- Waiver of Jury Trial. YOU AND PLAYLIST HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Playlist in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PLAYLIST WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision in these Terms, in the event that this subparagraph is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes shall be resolved in a court located in San Mateo County, California.
- Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Small Claims Court. Notwithstanding the foregoing, either you or Playlist may bring an individual action in small claims court.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in St. Louis, Missouri, for such purpose.
- Survival. This Arbitration Agreement will survive the termination of your relationship with Playlist.
- Governing Law; Venue. The laws of the State of California, excluding its conflicts of law rules, govern your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the App, the Service or this agreement shall be filed only in the state and federal courts located in San Mateo County, California, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Service.
- Severability. If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions.
- ADDITIONAL EULA TERMS APPLICABLE TO IPHONE, IPOD TOUCH OR IPAD APPS
Notwithstanding anything to the contrary in the EULA set forth above, the following additional terms shall apply to any Apps downloaded for use on the iPhone, iPod Touch or iPad:
- Acknowledgement: The parties acknowledge that this EULA is concluded solely between such parties, and not with Apple, and Playlist, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive
- Scope of License: The license granted to you is limited to a non-transferable license to use the Apps on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Apps. 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, if any, paid to Apple for the App to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Playlist. However, you understand and agree that in accordance with the EULA, Playlist has disclaimed all warranties of any kind with respect to the App, the Site and the Service, and therefore, there are no warranties applicable to the Apps.
- Product Claims: The parties acknowledge that as between Apple and Playlist, Playlist, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the App or the end-user’s possession and/or use of that 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.
- Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the App or the end-user’s possession and use of that App infringes that third party’s intellectual property rights, Playlist, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the EULA.
- Legal Compliance: 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.
- Developer Name and Address: Any end-user questions, complaints or claims with respect to the App should be directed to:
Playlist Media, Inc.
3130 Alpine Rd, Suite 288-108
Portola Valley, CA 94028
- Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof).