HOLLERHEAR TERMS OF SERVICE
These Terms of Service (the “Terms”) govern your use of the HollerHear (the “Licensed Application”) and related service (the “Service”) provided by the HollerMedia, Inc. (“Licensor”) (the Licensed Application and Service are referred to collectively as the “App”).
The App is Not for Children under 13.
The App and Licensor’s websites are not intended for children under the age of 13, so children under the age of 13 should not use them at any time. If you are between the ages of 13 and 17, you should review these terms with your parent or guardian to make sure that you and your parent or guardian understand it. You and your parent or guardian represent that each has reviewed and agreed to these Terms. Licensor does not knowingly collect any information from children under the age of 13. In the event that licensor learns that it has inadvertently gathered personal information from children under the age of 13, licensor will take reasonable measures to promptly delete such information.
Subject to the provisions of these Terms, Licensor grants to you a royalty-free, non-exclusive, non-transferable license to use the App for your personal use and only on the device on to which it is downloaded. You agree that you shall not make or permit the making of any modifications, additions or enhancements to the App, or cause or permit the disassembly, decompilation or reverse engineering of the App except and only to the extent allowed by applicable law. You hereby grant Licensor a perpetual, irrevocable, worldwide license to copy, cache, transmit, distribute, perform, display, publish, import and export the postings you’ve made through the App and to sublicense the foregoing rights to Licensor’s service providers, with such rights to survive expiration or termination of these Terms.
Licensor and its providers retain all right, title and interest, including all intellectual property rights embodied in the App.
After installation Licensor establishes an account for you and collects data about your use of the App and data that you provide when using the App. The App collects Personal Data, Login Information, Holler Data and Anonymous Data (defined in the following paragraph). “Personal Data” is data that identifies you personally that includes: name and email address, and may include your personal photo and/or phone number. Personal Data is used only to identify you with your account in order to provide the Service. You may have Licensor remove your Personal Data from its systems by terminating your account as provided below. The Licensed Application also collects third party service login information (“Login Information”). Login Information is tokenized and remains on the Licensed Application and is not passed to or stored on Licensor’s servers. Tokenized Login Information enables association of your App usage with your third party service. Login Information is used only to enable your use of the App and you hereby consent to Licensor’s use of such Login Information to enable your use of the App. “Holler Data” is the content you provide through postings made through the App, whether text, voice recordings or other material posted by you. You represent that you have the right to grant to Licensor the rights to use Personal Information, Login Information, and Holler Data to enable your use of the App and as provided in these Terms. Anonymous Data collection and use is discussed below. You acknowledge and agree that you may be identified as an App user to other users of the App and consent to allow Licensor to identify you as an App user to other App users, using Personal Information you’ve provided to Licensor.
“Anonymous Data” means data gathered through the App which does not include Personal Information, Login Information or Holler Data, including but not limited to your followers, those who follow you, the length of your postings, time you spend in the App, the number of times you use the App, the number and category of postings you post through the App, date, category and time of postings, the number of listeners of your posters, the posts you listen to, location data, device type and operating system, carrier identity, and device identifiers such as UDID, Ethernet MAC address and/or advertising identifier. Anonymous Data may be used by Licensor and shared with third parties to provide, improve, monitor, and update App and other current and future Licensor applications and may be used to provide advertisements to you within the App if enabled by the App. Advertising may be targeted based on Anonymous Data and other information Licensor or its service providers may have about you. Advertising service providers may also use Anonymous Data to target advertisements to you through third party applications and websites. By using Apps, you are providing your consent for use of Anonymous Data by Licensor and its service providers as described in this document and you hereby authorize and grant to Licensor a license to use, copy, and transmit Anonymous Data for any purpose and to sublicense, sell, lease and/or transfer the foregoing rights to any third party, subject to limitations of applicable law. You may be able to opt out of receiving targeted advertisements from third parties. For example, in some iOS devices (with iOS 6 or later), the advertising identifier may be disabled at your discretion. Further, some advertising service providers enable you to opt out of targeted advertising through mechanisms available to you through advertisements or on their websites. Licensor does not provide separate opt out mechanisms. You are solely responsible for exercising any opt out mechanisms made available by third parties.
Requirements & Limitations.
A data connection is required to use the App. You are solely responsible for any fees and costs associated with that data connection, such as wireless data charges. You acknowledge and agree that certain features may be limited, suspended, blocked or restricted by geography, duration or other criteria at any time and without liability to you. You acknowledge and agree that: (i) you will use the App only for yourself, with your true identity, and for lawful purposes and in compliance with applicable law; and (ii) you will not engage in any activity that interferes with or disrupts the App. You agree that you will not create or transmit any content or communications using the App that are obscene, abusive, harassing, threatening, racist, malicious, fraudulent, defamatory, libelous, harmful to minors or that may violate or infringe the rights or privacy of third parties, as determined by Licensor in its sole discretion.
Term and Termination.
These Terms are effective until terminated by you or Licensor. Licensor may terminate these Terms and/or disable use of the App at any time, for any reason, and without any liability to you. You may terminate these Terms at any time, for any reason, by contacting firstname.lastname@example.org and stating that you are terminating your use of App. Upon termination your account will be terminated and the licenses granted to you shall cease, your Personal Data will be deleted unless otherwise required by applicable law, and you shall promptly uninstall the App. The rights of Licensor which survive expiration or termination as provided in these Terms, the protections afforded to Licensor under the App Store Terms, and the sections in these Terms entitled “Ownership,” “Data Collected,” “Term and Termination,” “No Warranties,” “Limitation of Liability,” “Indemnification and Waiver,” “Consents and Representations,” “Governing Law; Venue,” “Severability; No Waiver,” “Use of Electronic Communications,” “Entire Agreement” and “General” shall survive termination or expiration.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF APP AND SERVICE IS AT YOUR SOLE RISK AND THAT APP AND THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. LICENSOR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF APP OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR. IF YOU ARE DISSATISFIED WITH THE APP OR SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE APP AND SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LICENSOR OR A THIRD PARTY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability.
YOU AGREE THAT LICENSOR WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR THE ACTIONS OF THIRD PARTIES IN CONNECTION WITH THE APP OR THE SERVICE. IN NO EVENT WILL LICENSOR AND ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO USE OF THE APP, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF TEN DOLLARS (U.S. $10.00). NOTHING HEREIN SHALL EXCLUDE OR LIMIT LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
Indemnification and Waiver.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD LICENSOR HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF EXPERTS, RESULTING FROM (I) ANY VIOLATION OR BREACH OF THESE TERMS BY YOU, (II) ANY ACTIVITY RELATED TO YOUR ACCESS TO OR USE OF THE SERVICE (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT), OR (III) THE AUTHORIZED USE AND PROCESSING OF DATA PROVIDED BY YOU OR OBTAINED FROM THIRD PARTY SERVICES AT YOUR DIRECTION OR WITH YOUR CONSENT.
Consents and Representations.
In addition to the consents provided by you elsewhere in these terms, you agree and consent to the following: (i) Licensor may send administration messages to you at the email address or phone number provided by you, and the App may include, service announcements, advertising, and administrative messages, and you will not be able to opt out of receiving them except in the event you terminate your rights as provided below; (ii) Licensor may transfer your Personal Data within and without the European Union, including but not limited to the U.S.A.; and (iii) Licensor may process and store your Personal Data in any country of the world. You represent and warrant that you have all necessary rights to grant all consents herein and that Licensor’s exercise of the licenses and consents granted by you under these Terms will not violate applicable law or infringe or violate the rights of any party.
Governing Law; Venue.
These Terms shall be governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Any dispute between the parties regarding these Terms will be subject to the exclusive venue of the state and federal courts in the state of California of the United States of America in San Mateo County. The parties hereby consent to the exclusive jurisdiction and venue of such courts. If you download an App for use in the United States, (i) any dispute between you and Licensor, specifically excluding actions by Licensor to enforce and protect its rights in the App, shall be resolved through binding arbitration conducted through the American Arbitration Association in San Francisco, California; (ii) you and Licensor 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; (iii) unless both you and Licensor 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; and (iv) you acknowledge and agree that you are waiving a right to litigate applicable disputes in court before a judge or jury. You agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods (1980) terms are hereby excluded in its entirety from application to these Terms.
Severability; No Waiver.
If any provision is deemed invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect its intent, and the remaining provisions shall continue in full force and effect. The failure by either you or by Licensor to exercise or enforce any rights or provisions herein shall not constitute a waiver of such right or provision.
Use of Electronic Communications.
You agree to the use of electronic communication to enter into agreements, contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with Licensor.
The foregoing sets forth the entire understanding and complete and exclusive statement of the agreements between you and Licensor and supersedes any proposal or prior agreements or understandings between you and Licensor with respect thereto.
No rights granted to you may be assigned by you in whole or in part without the prior written approval of Licensor. Any assignment in violation of the foregoing shall be null and void. Licensor shall not be liable for any delay in the performance hereunder due to causes beyond its or their direct control, including but not limited to actions by third parties, an act of God, war or natural disaster. You have no third party beneficiaries. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
© 2015 HollerMedia, Inc. All rights reserved
Last updated 8/26/15
All content that is made available to view and/or download in connection with the Site is the copyrighted work of and is owned by HollerMedia and/or its licensors or users, as applicable, and is protected by copyright and other laws and international treaty provisions. You may not copy, modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any such content without the express written permission of HollerMedia and the copyright owner. You may not frame or otherwise include the Site within any other website or software.
“HollerMedia” and “HollerHear” are trademarks of HollerMedia and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners. You may not copy, display or use any of these marks without prior written permission of the mark owner.
© 2015 HollerMedia, Inc. All rights reserved
Last updated 8/26/15
HollerMedia respects the intellectual property of others, and we expect our users to do the same. HollerMedia may suspend and/or terminate the accounts of users who infringe the rights of others. If you believe that your copyrights or other intellectual property rights have been infringed by postings of others on the Site or through the HollerHear mobile application, you should provide HollerMedia’s copyright agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
HollerMedia’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
555 Bryant Street, Suite 500
Palo Alto, CA 94301