END USER LICENSE AGREEMENT AND TERMS OF SERVICE
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you” or “your”) and AKAZOO LIMITED (“Akazoo,” “we,” “us” or “our”) governing your use of the software applications that Akazoo makes available for download to mobile phones, tablets, (individually and collectively, the “App”), the website located at https://www.akazoo.fm and any other online properties owned or controlled by or on behalf of Akazoo (each a “Website” and, collectively, the “Websites”) (the App and any Websites are the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU MAY NOT USE THE SERVICE.
Material Terms: As provided in detail in this EULA you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the Service to you on an “as is” basis without warranties of any kind and Akazoo’s liability to you is limited;
- disputes arising between you and Akazoo will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 7 below, you and Akazoo are each waiving the right to a trial by jury or to participate in a class action;
1. General Terms and Conditions.
a. Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice. We will try to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Akazoo provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.a, no revisions to this EULA will apply to any dispute between you and Akazoo that arose prior to the effective date of such revision.
c. Jurisdictional Issues. The Service is controlled and operated by Akazoo from its offices in the UK. Akazoo makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United Kingdom. Those who choose to access or use the Service from locations outside the United Kingdom do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
d. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY AKAZOO. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least the age of majority in your jurisdiction or you have been authorized to use the Service by your parent or legal guardian who is at least the age of majority in your jurisdiction.
e. Additional Terms. We also may require you to agree to additional terms and/or policies beyond those mentioned in Section 1.b that we make available to you from time-to-time in connection with your use of the Service, including, without limitation, any such terms that apply to contests that we run on the Service (“Additional Terms”). Any such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
2. The Service.
a. Description. Akazoo provides an information location tool and audio guide service offering access to a selection of indexed radio stations, podcasts, and other content, including radio stations, podcasts and other content created by or on behalf of Akazoo. All features of the Service are available to you free of charge (the “Service”). Any end user who access and uses the Service is a “User,” The term “Users” refers to Users, collectively.
i. Service. You acknowledge and agree that this EULA is entered into in consideration of your use of the Service pursuant to this EULA and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge.
ii. No Rights to Compensation. In return for enjoying the Free Service, you further acknowledge and agree that Akazoo may generate revenues (including from advertising and sponsorships), increase goodwill or otherwise increase the value of Akazoo from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.
c. Changes to the Service. Akazoo may at its sole discretion and from time to time change, add or remove features, functionality and content of or available through the Service without any notice to you. Akazoo may also terminate or discontinue support for any versions of the App. Akazoo also reserves the right to discontinue some or all of the features of the Service at any time at its sole discretion (including the provision of software updates and support for different devices or platforms). You acknowledge and agree that Akazoo will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, any App, or any specific functionality of the Service or the removal of any features, functionality or content. If you are dissatisfied with any changes to the Service, then your sole option is to discontinue or terminate your use of the Service as described herein.
d. Mobile Services. The Service is currently accessible via computer or on a mobile phone, tablet or other connected device (collectively, “Mobile Services”). Your mobile carrier’s or ISPs normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be in accordance with this EULA.
e. Service Security. You may not violate, or attempt to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service. Akazoo reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, to refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations. This cooperation may include the disclosure of all or your activities on or related to the Service. You agree to promptly notify Akazoo if you learn or reasonably suspect that any security breach related to the Service has occurred.
a. Log-In Credentials. In order to access the Service and enjoy the full functionality and benefits of the Service you must register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your Account credentials. You agree to notify Akazoo immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your Account credentials or any other breach of security with respect to your Account. Akazoo will not be liable for any loss or damage arising from unauthorized use of your Account credentials prior to you notifying Akazoo of such unauthorized use or loss of your Account credentials.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Akazoo requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Akazoo, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Akazoo may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. Intellectual Property Rights.
a. Service. Subject to your complete and ongoing compliance with this EULA, Akazoo hereby grants you a revocable, non-exclusive, non-transferable, non-sub licensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial entertainment use as intended through the provided functionality of the Service and solely in strict compliance with the provisions of this EULA. You may not alter, modify, creative derivative works of, sell, license or in any way exploit, any part of the Service except as expressly set forth in the preceding sentence.
b. Akazoo Content. Except for User Content (defined below) and third party content owned or controlled by third party transmitting entities over whom Akazoo does not exercise a right and ability to control and where such content is made available through the Service when Akazoo is providing an information location tool, index or directory service (“Third Party Content”), the content that Akazoo itself provides to Users on or through the Service, including without limitation, any radio programs, podcasts or other audio content, text, graphics, photos, software and interactive features, may be protected by copyright or other intellectual property rights and is owned by Akazoo or its third party licensors (collectively, the “Akazoo Content”). You may not reproduce, modify, distribute, display, publish, transmit, communicate to the public, make available, broadcast, create derivative works from, publicly perform (including on a through-to-the audience basis) and otherwise use and exploit (collectively, “Use”) any Akazoo Content without Akazoo’s prior authorization. You may not Use any User Content or Third Party Content without the prior authorization of the owners of such content, notwithstanding any functionalities of the Service. Akazoo does not guarantee access to any particular User Content, Akazoo Content, or Third Party Content. Akazoo or its licensors, and the owners of User Content and Third Party Content, may change, delete, or prohibit access to Akazoo Content, User Content or Third Party Content, as the case may be, or schedules of any of the foregoing, at any time with or without notice. You understand that by using the Service, you may encounter User Content, Third Party Content, and Akazoo Content that you may find offensive or objectionable and that might constitute Objectionable Content as defined in our Acceptable Use Policy. Akazoo is not the publisher of, nor responsible for, any Objectionable Content made available in User Content or Third Party Content, and to the fullest extent permitted by law, Akazoo will have no liability to you with respect to Objectionable Content you access via the Service. User Content, Third Party Content, and Akazoo Content may be transmitted with a variety of copy protection mechanisms. These copy protection mechanisms may be designed to protect the copyright interests of Akazoo or its licensors or third party transmitting entities, as applicable. These copy protection mechanisms may limit or prevent the ability of the Service to play Akazoo Content, User Content or Third Party Content. You agree that Akazoo will have no liability to you or any third party with regard to your ability to access, listen to, or otherwise use, any Akazoo Content, User Content or Third Party Content due to a copy protection mechanism. You may not remove or attempt to circumvent any copyright protection mechanisms in any Akazoo Content, User Content or Third Party Content without express authorization of the owner of such content or their authorized agent, or as otherwise permitted by law, and any attempts to do so may subject you to liability.
c. Marks. Akazoo trademarks, service marks and logos (the “Akazoo Trademarks”) used and displayed on the Service are Akazoo’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Akazoo Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Akazoo or the applicable third-party, Akazoo’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Akazoo’s prior express written consent. All goodwill generated from the use of any Akazoo Trademark will inure solely to Akazoo’s benefit.
d. Restrictions. The Service, Akazoo Content, and Trademarks, including all intellectual property rights therein, are the sole and exclusive property of Akazoo and its licensors. Akazoo hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Akazoo Content or Trademarks located or displayed therein. Except for the right to access Third Party Content through the Service, no rights are hereby granted to you with respect to such Third Party Content.
5. User Content and Other Content.
a. Definition. This Section governs any material that you post, send or transmit (collectively, “Post”) through the Service, including, by way of example and not limitation, photographs, graphics, images and text (collectively, “User Content”) and other activities that Akazoo may take with respect to materials accessible through the Service.
b. Licenses to User Content. By Posting User Content to or through the Service, you hereby grant to Akazoo (and Akazoo’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, perpetual, assignable, sublicensable, revocable, royalty-free, fully paid-up license throughout the world to Use all User Content you Post to or through the Service, through any media and formats now known or hereafter developed, in connection with the Service or our business.
c. You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the owner of or are not fully authorized to grant rights throughout the universe in all elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any party in any territory throughout the universe; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
d. Acceptable Uses and Objectionable Content. We want Users to have an enjoyable experience when they use the Service. To facilitate that, we have adopted an Acceptable Use Policy, which is hereby incorporated by reference into this EULA. You are required to comply with the Acceptable Use Policy when Posting any User Content to the Service. The Posting of any Objectionable Content, as defined in the Acceptable Use Policy, may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please immediately email Akazoo at email@example.com. You acknowledge and agree that Akazoo provides you with the ability to report Objectionable Content as a courtesy, and Akazoo has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, Akazoo in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content Posted on the Service, and/or reporting the User to law enforcement or other governmental authorities, either directly or indirectly.
e. Monitoring. Akazoo has the right, but not the obligation, to monitor the Service, and may remove or restrict access to any User Content, Third Party Content or Akazoo Content from the Service for any reason in its sole discretion at any time, without notice and without any liability to you. You acknowledge that Akazoo may establish general practices and limits concerning use of the Service without notice to you, including, without limitation, the maximum period of time that User Content or Akazoo Content will be retained by the Service and the maximum storage space that will be allotted on Akazoo’s servers on your behalf. You acknowledge and agree that Akazoo may preserve any content and may also disclose any content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this EULA; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Akazoo, its Users and the public. You understand that Akazoo does not guarantee any confidentiality with respect to User Content and will have no responsibility or liability for User Content that is deleted from the Service.
6. Advertisements and External Sites.
a. Advertisements. Akazoo may display advertisements for the goods and services of third parties or other promotional materials on the Service. Your dealings with, or participation in, promotions of any third party advertisers on the Service, are solely between you and such third party, and your participation is subject to any terms and conditions associated with that advertisement or promotion. Akazoo does not endorse or represent such third parties, and by using the Service, you agree that Akazoo is not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or the presence of such third parties on the Service.
b. External Sites. The Service may contain links to or the ability to share information with third party websites (“External Sites”). Akazoo does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon 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 content located on such External Sites. Akazoo is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and connected devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Akazoo will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
7. Dispute Resolution.
a. General. In the interest of resolving disputes between you and Akazoo in the most expedient and cost effective manner, you and Akazoo agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND AKAZOO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
8. Limitation of Liability and Disclaimer of Warranties.
THE FOLLOWING TERMS IN THIS SECTION 8 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. AKAZOO, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “AKAZOO PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE AKAZOO PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE AKAZOO PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO AKAZOO PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE AKAZOO PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY AKAZOO PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH AKAZOO PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AKAZOO’S LIABILITY, AND THE LIABILITY OF ANY OTHER AKAZOO PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
9. Third Party Disputes.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE AKAZOO PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to indemnify and hold Akazoo, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Akazoo Content; (b) your User Content; or (c) your violation of this EULA. Akazoo will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Akazoo is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding Akazoo’s inability to contact you in a timely manner. Akazoo reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter that is subject to indemnification under this Section at your sole expense. In such case, you agree to cooperate with any reasonable requests to assist Akazoo’s defense of such matter.
11. Term and Termination of the EULA.
a. Term. As between you and Akazoo, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Akazoo.
b. Termination. You may terminate this EULA by sending written notification to Akazoo at firstname.lastname@example.org, deleting the App from your connected device and terminating all other uses of the Service. Akazoo reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party. Akazoo may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your Account credentials. Akazoo reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
c. After any termination of this EULA, you understand and acknowledge that (i) we will have no further obligation to provide the Service to you; and (ii) all licenses and other rights granted to you in this EULA will immediately cease. Akazoo is not liable to you or any third party for termination of the Service or termination of your use of the Service. Upon any termination or suspension, you may no longer access any information (including your User Content) that you have Posted to the Service or that is related to your Account. Furthermore, Akazoo will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any third party.
12. Contact Us.
If you have any comments, complaints, suggestions about this EULA or the Service or otherwise would like to contact us, then you can contact Akazoo by email at support@Akazoo.com, or by normal post at 2 Melville Street, Falkirk, FK1 1HZ.