END USER LICENSE AGREEMENT AND TERMS OF SERVICE
LAST UPDATED: [Oct 17, 2019]
This End User License Agreement and Terms of Service (“EULA”) is between Look Sharp Labs, Inc. (“BLKBOX”) and you, an individual user (“you”), and governs your use of BLKBOX’s website at blkboxapp.com (“Website”), mobile software application that has been made available for download (“App”), and any related websites or other online properties owned or controlled by BLKBOX (together with the Website and the App, the “Service”). BY INSTALLING ANY APP OR OTHERWISE ACCESSING OR USING ANY PORTION OF 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 ANY PORTION OF THE SERVICE.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of 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 terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
· you are responsible for clearing the rights to all User Content (defined in Section 5.1 below) you Post (defined in Section 5.1 below) to the Service;
· BLKBOX provides the App to you on an “AS IS” basis without warranties of any kind and BLKBOX’s liability to you is limited;
· disputes arising between you and BLKBOX will be resolved by binding individual arbitration. By accepting this EULA, as provided in greater detail in Section 11 below, you and BLKBOX are each waiving the right to a trial by jury or to participate in a class action;
· you agree to and acknowledge the “Notice Regarding Apple” below; and
· if you Post any Objectionable Content (defined in Section 5.10 below) on the Service, then BLKBOX may – but has no obligation to – take any remedial action that BLKBOX, in its sole discretion, deems necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your Account (defined in Section 3.1 below), removing all of your User Content from the Service and/or reporting you to law enforcement authorities, either directly or indirectly.
1. GENERAL TERMS AND CONDITIONS
1.1 Description. BLKBOX connects life to music. The Service is a social platform that allows fans (“Fans”) and artists (“Artists,” together with Fans, “Users”) to soundtrack moments of their lives with their favorite songs made available through BLKBOX’s search and suggestion features (“BLKBOX Directory”). BLKBOX enables Users to (i) search for sound recording samples and the musical works embodied therein (such sound recordings and the musical works embodied therein are “Samples”) through the BLKBOX Directory; (ii) incorporate those Samples into short videos and GIFs to create social media posts (each a “BLKBOX Post”); and (iii) Post BLXBOX Posts for public display and public performance through certain third-party social media platforms (e.g., Facebook and Instagram).
1.2 Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY BLKBOX. 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 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 legal guardian who is at least 18 years of age and entered into this EULA on your behalf. If you are using the Service on behalf of an entity (including a band) or organization, then you represent and warrant that you have the authority to bind that entity or organization to this EULA and you agree to be bound by this EULA on behalf of that entity or organization.
1.3 Changes. As the Service may undergo changes over time, we need the right to modify this EULA to match the changing functionalities of the Service. You therefore agree that BLKBOX may change this EULA at any time without prior notice other than posting an updated EULA to the Website or within our App. BLKBOX will endeavor to provide you with prior notice when there are any material changes, and may require that you subsequently take an affirmative action acknowledging agreement to the revised EULA before continuing to access the Service. You may read a current, effective copy of this EULA at any time at http://blkboxapp.com/eula-and-terms-of-service. The revised EULA will become effective at the time of posting on the Service, and your use of the Service after such time will constitute your acceptance of the revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop using the Service. Notwithstanding the preceding sentences of this Section 1.3, no revisions to this EULA will apply to any dispute between you and BLKBOX that arose prior to the effective date of those revisions.
1.4 Consideration. BLKBOX currently provides you with access to the Service for free. In return for enjoying this free access, you acknowledge and agree that BLKBOX may generate revenues, increase goodwill or otherwise increase the value of BLKBOX from your use of the Service, and you will have no right to share in any such revenues, goodwill or value whatsoever. BLKBOX in its sole discretion may eventually charge you fees to access certain features on the Service. BLKBOX will provide advance notice of any such changes before they take effect. Even if we charge you a fee for the use of the Service, you will have no right to share in the revenues we charge you or other Users or to share in any goodwill or value created.
1.6 Jurisdiction. The Service is controlled and operated by BLKBOX from its offices in the State of California. BLKBOX makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, 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 content or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
1.7 Messages. You may be able to send messages to others through certain functionality on the Service, including inviting your friends to use the Service by sending them a text message through your mobile device. You represent and warrant that: (i) you will only send messages to others who have given you their express consent to receive messages; (ii) you, and only you, are responsible for sending messages and BLKBOX merely acts as a technology platform; and (iii) you will indemnify and hold BLKBOX harmless from any and all claims arising out of your messages. You are responsible for all fees and charges associated with your messages. If a recipient of messages you send requests that we prevent you from sending additional messages to them through the Service, then we will abide by such recipient’s request and block you (and other users of the Service) from sending messages to such persons.
1.8 Mobile Services. The Service may be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will apply to your use of the Mobile Services and you are solely responsible for such rates and fees. 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 Service and the related Mobile Services must be in accordance with this EULA.
1.9 Additional Terms. BLKBOX may require you to agree to additional terms and/or policies that it makes available to you from time-to-time in connection with your use of the Service (“Additional Terms”). Except as expressly stated otherwise in Additional Terms, 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, unless such Additional Terms expressly supersede a term in this EULA.
2. COMMUNITY GUIDELINES
In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not attempt to or assist any other person or entity in doing any of the following):
2.1 delete, alter or make unauthorized copies of any content made available on or through any part of the Service (whether BLKBOX Content (as defined in Section 4.3), User Content, or otherwise), excluding any User Content that you have Posted;
2.2 attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up any part of the Service, except to the extent any such restrictions are expressly prohibited by applicable law;
2.3 rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service or content thereon to any third party;
2.4 remove, circumvent, disable, damage or otherwise interfere with security-related features of any part of the Service, features that prevent or restrict use or copying of any content accessible on any part of the Service, or features that enforce limitations on use of any part of the Service or any content thereon;
2.5 delete any copyright or other proprietary rights notices on any part of the Service;
2.6 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity or content of information transmitted via the Service, or perform any other fraudulent activity;
2.7 create a new Account with BLKBOX, without BLKBOX’s express written consent, if BLKBOX has previously disabled an Account of yours;
2.8 restrict, discourage or inhibit any person from using the Service or disclose personal information about a third person on the Service or obtained from the Service without the consent of that person;
2.9 use the Service, without BLKBOX’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
2.10 gain unauthorized access to the Service, to other Users’ Accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
2.11 Post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
2.12 access, tamper or interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; or
2.13 violate any applicable federal, state or local laws or regulations or the terms of this EULA.
3.1 Accounts. In order to enjoy the full benefits of the Service, you must download the App and register an account with BLKBOX (“Account”). You may also register and log into the Service using credentials from Facebook. When you register for an Account, you must provide us with some information about yourself such as your name and email address. You may not select or use a name as an Account username that is: (i) a name of another person with the intent to impersonate that person; or (ii) a name subject to any rights of any person, entity, or organization other than yourself without appropriate authorization. We have created different categories of Users of the Service and depending upon which category of User you are, your rights and the functionalities made available to you through your Account may differ. If you are an Artist, then we may require that you create a profile on our Website (“Artist Profile”). To complete your Artist Profile, we may ask you to submit information about yourself, including Artist Content (as defined in Section 5.1) (no less than one sound recording), a profile picture, biographical information, and links to social media accounts owned or controlled by you. Once you create an Artist Profile, you may create an Account and link your Account to your Artist Profile.
3.2 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 credentials. You agree to notify BLKBOX immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. BLKBOX will not be liable for any loss or damage (whether direct or indirect) arising from unauthorized use of your credentials prior to you notifying BLKBOX of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Services (as defined in Section 7).
3.3 Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as BLKBOX requests. You will update such information promptly, and as necessary to keep it current and accurate. BLKBOX reserves the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by BLKBOX in its sole discretion, and may, with or without prior notice and without liability to you, suspend or terminate your Account if activities occur on your Account that, in BLKBOX’s 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 BLKBOX, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then BLKBOX may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. GENERAL USE OF THE SERVICE; INTELLECTUAL PROPERTY RIGHTS
4.1 License. Subject to your complete and ongoing compliance with this EULA, BLKBOX hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to: (i) download, access and use an object code version of the App on any device that you own or control; (ii) access and use all public-facing portions of the Service, in each case, solely for the purposes of Posting your User Content on the Service or an External Service; (iii) access and use any Samples made available in the BLKBOX Directory to create BLKBOX Posts including by reproducing Samples in timed relation to visual images; and (iv) distribute and reproduce Samples as embodied in BLKBOX Posts to and on External Services. Any third-party code that may be incorporated into any App is covered by the applicable open source or third-party license, if applicable. For a list of the open source components included in the App, please refer to the document located here. [NTD – INSERT HYPERLINK WHEN AVAILABLE FROM DEVELOPERS.]
4.2 Limitations on Use and Modification. Nothing in this EULA authorizes you to, with respect to BLKBOX Posts and the Samples embodied therein, use any aspect of any musical work or sound recording in a manner that is not expressly permitted by this EULA. Any violation of the preceding sentence may be deemed copyright infringement absent any defense(s) available under applicable law and subject you to liability.
4.3 Content. Except for User Content, the content that BLKBOX provides to Users on or through the Service, including without limitation, any sound recordings (and the musical works embodied therein), audiovisual works (and the sound recordings and musical works embodied therein), text, graphics, photos, software, and interactive features, may be protected by copyright or other intellectual property rights and owned by BLKBOX or its third party licensors (collectively, the “BLKBOX Content”). Moreover, BLKBOX solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
4.4 Marks. The BLKBOX trademarks, service marks, and logos (collectively, the “BLKBOX Trademarks”) used and displayed on the Service are BLKBOX’s registered and/or unregistered trademarks or service marks. Any other product and service names located on any part of the Service may be trademarks or service marks owned by third parties (collectively with the BLKBOX Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage BLKBOX or the applicable third party, BLKBOX’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 website without BLKBOX’s prior express written consent. All goodwill generated from the use of any BLKBOX Trademark will inure solely to BLKBOX’s benefit.
4.5 Reservation of Rights. BLKBOX 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 BLKBOX Content or Trademarks located or displayed therein.
4.6 Functionality. Certain features and functionalities may only be available on the Website or the App but not both. BLKBOX, in its sole discretion, may provide functionalities across both the Website and the App, and may disable functionalities, temporarily or permanently, at any time, without any liability to you.
5. USER CONTENT; LICENSE TO BLKBOX; FEEDBACK
5.1 Definition. This Section 5 governs any content that Users upload, post or transmit to or through the Service (collectively, “Post”) including, without limitation, photographs, text, sound recordings, musical works, or audiovisual works, and any other works subject to protection under the laws of the United States or any other jurisdiction, including, without limitation, patent, trademark, trade secret and copyright laws (if you are an Artist, this is “Artist Content,” if you are a Fan, this is “Fan Content,” collectively, “User Content”). User Content also includes any content hosted on or accessible through an External Service that is made accessible through the Service. For clarity, User Content excludes any and all BLKBOX Content.
5.2 Screening Content. BLKBOX does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion and without any liability to you. In addition, BLKBOX has the right – but not the obligation – in its sole discretion to remove, disallow, limit access to any User Content on a territory-by-territory basis, block or delete any User Content: (i) that BLKBOX considers to violate this EULA, applicable law or otherwise constitute Objectionable Content; or (ii) in response to complaints from other Users, licensors or copyright owners or their agents, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, BLKBOX also has the right – but not the obligation – to take remedial action in connection with any Objectionable Content Posted to the Service as described more fully in Section 5.10 below. BLKBOX recommends that you save copies of any User Content that you Post on your personal device(s) or other storage media to ensure that you have permanent access to copies of such User Content.
5.3 Ownership. SUBJECT TO ANY THIRD-PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT, AND POSTING YOUR USER CONTENT DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS TO BLKBOX OR ANY THIRD PARTY.
5.4 License to BLKBOX. You hereby grant BLKBOX an unrestricted, assignable, sublicensable, revocable (except as set forth below), royalty-free, fully paid-up license throughout the universe to reproduce (including the right to synchronize in timed relation to visual images in an audiovisual work (i.e., synchronization and master use licenses)), distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Services, and otherwise exploit and use, whether in a linear or on-demand basis (collectively, “Use”) all or any part of all User Content you Post by any means and through any media and formats, whether now known or hereafter developed, for the purposes of: (i) advertising, marketing, and promoting BLKBOX, the Service, and the availability of your User Content on the Service; (ii) displaying and sharing your User Content to other Users of the Service, who are further authorized to reproduce (including in timed relation to visual images), distribute, and publicly perform User Content to create BLKBOX Posts; and (iii) providing the Service as authorized by this EULA. If you are an Artist, by uploading a sound recording to BLKBOX, you further authorize BLKBOX to: (A) generate an analysis of the acoustic attributes, including segments, tatums, beats, bars, time signature, key, mode, sections, tempo, loudness, duration, timbre, pitch, fades, mood, subject matter, and lyrics to create an analysis for each sound recording (including, but not limited to, a digital audio fingerprint) (the “Analysis”) and store that Analysis in a database; (B) transmit, make available, communicate to the public, publicly perform and publicly display all or any portion of a sound recording as Samples in the BLKBOX Directory to Users and extract and create clips of such sound recordings through BLKBOX Posts; and (C) sublicense Users a perpetual, irrevocable right to use the Samples to create a BLKBOX Post and share the Sample as embodied in the BLKBOX Post on an External Service. You further grant BLKBOX a royalty-free license to use your user name, image, voice and likeness to identify you as the source of any of your Artist Content. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to: (X) reproduce audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; (Y) publicly display audiovisual works; and (Z) publicly perform and communicate to the public audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works, all on a royalty-free basis. This means that you are granting BLKBOX the right to Use your Artist Content without the obligation to pay royalties to any third party, including, without limitation, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of Artist Content. You acknowledge and agree that you are not entitled to any payments from BLKBOX, or its sublicensees, if any, for Uses of your User Content as authorized in this EULA. Following any termination of the licenses set forth in this Section, BLKBOX may make and retain archival copies of your User Content in a manner consistent with BLKBOX’s practices regarding data retention and backups. Notwithstanding any other provision in this EULA, the licenses granted in this Section 5.4 are perpetual and irrevocable with respect to any of your User Content that BLKBOX sublicenses to any third party prior to the effective date of termination of your license grant with respect to any item of your User Content as set forth below. This means that, content you Post to the Service may live on the Internet in perpetuity, and you should think carefully before Posting any User Content to the Service.
5.5 You Must Have Rights to the Content You Post; Certain of Your Representations and Warranties. You must not Post any User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post any audiovisual works containing such sound recordings unless you have all necessary rights, authorizations and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to BLKBOX under this EULA. You represent and warrant that: (i) you own the User Content Posted by you or otherwise have all rights necessary to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content 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 does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from Posting your User Content, including from BLKBOX’s exercise of the license set forth in Section 5.4. You are solely responsible for obtaining any necessary rights, clearances, permissions or authorizations for Posting BLKBOX Posts to third party social media platforms and may be subject to liability for your failure to do so in the event of any unauthorized Posting of BLKBOX Posts.
5.6 Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this EULA to BLKBOX. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this EULA or have such music publisher enter into this EULA with BLKBOX. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant BLKBOX the licenses in this EULA. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label. Finally, if you wish to perform a cover song and Post it to the Service, you are responsible for securing all rights in and to the underlying musical work before Posting your recording or performance of such musical work to the Service.
5.7 Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Services or third party sublicensees of BLKBOX will not have any separate liability to you or any other third party for User Content Posted or Used on such External Services or by such third party sublicensees via the Service.
5.8 Waiver of Rights to User Content. By Posting User Content, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post.
5.9 Non-Confidentiality. You must not Post any User Content on or through the Service or transmit to BLKBOX any User Content that you consider to be confidential or proprietary. Any User Content Posted by you or otherwise transmitted to BLKBOX will be considered non-confidential and non-proprietary, and treated as such by BLKBOX, and may be used by BLKBOX in accordance with this EULA without notice to you and without any liability to BLKBOX.
5.10 Objectionable Content. You are not permitted to and agree not to Post any User Content that is or could be interpreted to be, as BLKBOX may determine in its sole discretion: (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, intolerance, racism or inciting violence ((i) and (ii) collectively, “Objectionable Content”). The Posting of any Objectionable Content 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. You also agree not to use the Service for illegal or unlawful purposes. If you encounter any Objectionable Content on the Service, then please immediately email BLKBOX at email@example.com. You acknowledge and agree that BLKBOX provides you with the ability to report Objectionable Content as a courtesy, and BLKBOX has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to BLKBOX. However, BLKBOX in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing some or all of the User’s User Content and/or reporting the User to law enforcement authorities, either directly or indirectly. By accessing and using the Service, you acknowledge and agree that you may be exposed to Objectionable Content and you hold BLKBOX harmless from such exposure.
5.11 Engaging with User Content and Other Users. User engagement with User Content and other Users through the Service (e.g., “liking,” “commenting,” “sharing,” “tagging,” or “messaging”) or any External Service for which we provide “sharing” functionality will be tracked and recorded by BLKBOX. For example, if you Post a BLKBOX Post to an External Service, we may notify the Artist who provided us with Sample that you used one of their Samples for such BLKBOX Post. You hereby consent to the monitoring of this activity.
5.12 No Liability. For the avoidance of doubt, BLKBOX will not be liable for any use or misuse of User Content by any User.
5.13 Feedback. If you choose to provide BLKBOX with input or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant to BLKBOX a perpetual, irrevocable, non-exclusive, fully-paid and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to you.
6. USER PROFILE PAGES
6.1 User Profile Pages. If you create an Artist Account, you will have the right to create an Artist Profile on the Service where you can showcase your Artist Content. The Artist Content you Post shall be subject to the license grants and other covenants, representations, and warranties set forth in this EULA. Your Artist Profile will include your Artist Content. Artist Content you upload to the Service will be made available to all other Users of the Service, and you hereby authorize BLKBOX to make your User Content available on other pages of the Service other than your Artist Profile. You should therefore think carefully before Posting any Artist Content to the Service. Once you upload Artist Content to the Service, even if you later remove such Artist Content from the Service – such Artist Content may remain available on the Internet and through other sources outside of our control. We assume no liability for such continued availability of any Artist Content.
7. EXTERNAL SERVICES
The Service may contain links to or the ability to share information with third party websites and services (“External Services”), including through features that allow you to link your Account on BLKBOX with an account on an External Service, such as Facebook. BLKBOX does not endorse any External Services or the content made available on such External Services. All External Services and any content thereon is developed and provided by others. You should contact the site administrator or webmaster for those External Services if you have any concerns regarding such content located on such External Services. BLKBOX is not responsible for the content of any External Services and does not make any representations regarding the content or accuracy of any materials on such External Services. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Services, purchase any content from External Services or subscribe to services offered by such External Service, then you do so at your own risk. You agree that BLKBOX will have no liability to you arising from your use, engagement, exposure to or interaction with any External Services.
8. TERM AND TERMINATION
8.1 Term. 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 BLKBOX.
8.2 Termination. You may terminate this EULA by deleting your Account through the App settings. BLKBOX 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 copyright owner. BLKBOX 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. BLKBOX reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
8.3 Survival. Sections 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 3.2, 3.3,4.2, 4.4, 4.5, 5, 7, 8, 10, 11, 12, 13, 14, 15.1, and all defined terms used therein will survive the termination of this EULA indefinitely.
9. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
9.1 Respect of Third-Party Rights. BLKBOX respects the intellectual property of others and asks Users to do the same. Infringing activity will not be tolerated on or through the Service.
9.2 Repeat Infringer Policy. BLKBOX’s intellectual property policy is to: (i) remove or disable access to material that BLKBOX believes in good faith, upon notice from an intellectual property rights owner or his or her agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (ii) in appropriate circumstances, to terminate the Accounts of and block access to the Service by User who repeatedly or egregiously infringe other people’s copyrights or other intellectual property rights.9.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by BLKBOX with the User alleged to have infringed a right you own or control, and you hereby consent to BLKBOX making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BLKBOX to locate the material;
iv. Information reasonably sufficient to permit BLKBOX to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer and/or see 17 U.S.C. § 512 or other applicable laws to confirm your obligations to provide a valid notice of claimed infringement.
9.4 Designated Agent Contact Information. BLKBOX’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via Email: firstname.lastname@example.org
Via U.S. Mail: Look Sharp Labs, Inc.
7352 Stanford Ave,
La Mesa, CA 91942
Attn: Copyright Department
9.5 Counter Notification. If you receive a notification from BLKBOX that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide BLKBOX with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to BLKBOX’s Designated Agent through one of the methods identified in Section 9.4 and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which BLKBOX may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.3 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 or other applicable laws to confirm the party’s obligations to provide a valid Counter Notification under the Copyright Act.
9.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to BLKBOX in response to a Notification of Claimed Infringement, then BLKBOX will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that BLKBOX will replace the removed User Content or cease disabling access to it in 10 business days, and BLKBOX will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless BLKBOX’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on BLKBOX’s system or network.
9.7 False Notifications of Claimed Infringement or Counter Notifications. The United States Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [BLKBOX] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
BLKBOX reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of applicable law.
10. LIMITATIONS ON LIABILITY AND WARRANTY DISCLAIMER
THE FOLLOWING TERMS IN THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
10.1 NEITHER BLKBOX NOR ITS AFFILIATES (COLLECTIVELY, THE “BLKBOX PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, COMPLETENESS, APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE BLKBOX PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTHFULNESS, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAMED ON THE SERVICE 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.
10.2 THE BLKBOX 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, NO BLKBOX PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
10.3 THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE BLKBOX PARTIES DISCLAIM ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
10.4 IN NO EVENT WILL ANY BLKBOX 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 BLKBOX PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLKBOX’S LIABILITY, AND THE LIABILITY OF ANY OTHER BLKBOX PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
10.5 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, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE BLKBOX 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.
11. DISPUTE RESOLUTION
11.1 Generally. In the interest of resolving disputes between you and BLKBOX in the most expedient and cost-effective manner, you and BLKBOX 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 BLKBOX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AND THAT THIS EULA SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
11.2 Exceptions. Despite the provisions of Section 11.1 above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim.
11.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 11 within 30 days after the date that you agree to this EULA by sending a letter to Look Sharp Labs, Inc., Attention: Legal Department – Arbitration Opt-Out, 7352 Stanford Ave, La Mesa, CA 91942, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once BLKBOX receives your Opt-Out Notice, this Section 11 will be void and any action arising out of these Terms will be resolved as set forth in Section 12. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
11.4 Arbitrator. Any arbitration between you and BLKBOX will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BLKBOX. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.11.5 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). BLKBOX’s address for Notice is: Look Sharp Labs, Inc., 7352 Stanford Ave, La Mesa, CA 91942. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or BLKBOX may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BLKBOX must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by BLKBOX prior to selection of an arbitrator, then BLKBOX will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by BLKBOX in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
11.6 Fees. If you commence arbitration in accordance with this EULA, then BLKBOX will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in La Mesa, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BLKBOX for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
11.7 No Class Actions. YOU AND BLKBOX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN CLAIMS WHICH ARE NOT COVERED BY THIS SECTION 11). Further, unless both you and BLKBOX agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.8 Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if BLKBOX makes any future change to this arbitration provision, other than a change to BLKBOX’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to BLKBOX’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and BLKBOX. If you do not send such written notice, then your continued use of the Service following any such change means that you have consented to such change.
11.9 Enforceability. If Section 11.7 above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue as described in Section 12 will govern any action arising out of or related to this EULA or your use of the Service.
12. GOVERNING LAW; CHOICE OF FORUM
The laws of the State of California, excluding its conflicts of law rules, govern this EULA and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of this EULA. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over San Diego County, California and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the BLKBOX Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (1) your breach of this EULA; (2) your access to, use or misuse of BLKBOX Content or the Service; or (3) your User Content. BLKBOX will provide notice to you of any such claim, suit or proceeding. BLKBOX reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if BLKBOX believes that you are unwilling or incapable of defending BLKBOX’s interests. In such case, you agree to cooperate with any reasonable requests assisting BLKBOX’s defense of such matter at your expense.
14. CONSENT TO ELECTRONIC COMMUNICATIONS
15.1 Miscellaneous. This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and BLKBOX as a result of this EULA or your use of the Service. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of BLKBOX to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against BLKBOX unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by BLKBOX and you, this EULA constitutes the entire agreement between you and BLKBOX with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of BLKBOX’s successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of BLKBOX. BLKBOX may assign this EULA, including all its rights hereunder, without restriction.
15.2 Notice Regarding Apple. You acknowledge that this EULA is between you and BLKBOX only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary of this EULA. You hereby represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If BLKBOX provides a translation of the English language version of this EULA, then the translation is provided solely for convenience, and the English version will prevail.
15.3 Contact Us. If you would like to contact BLKBOX in connection with your use of the Service, then please refer to the contact information below: by mail at 7352 Stanford Ave, La Mesa, CA 91942, and by email at email@example.com.