Terms and Conditions
TERMS OF USE FOR Spodtronic Radio Application
Last Revised: February 22, 2010
INTRODUCTION AND BACKGROUND INFORMATION
Welcome to Liquid Air Lab’s (“LAL”) web site, http://www.spodtronic.com (the “Website”). LAL is the
owner of spodtronic, the #1 radio player for Nokia devices, and the developer of leading applications
(“Apps”) for Apple’s iPhone, iPod Touch, Android, Blackberry and Nokia S60 Series (the “Devices”).
LAL has developed a turn-key App (“Your App”) for use by terrestrial radio stations and Internet-only webcasters.
Your App will be branded with your station or website’s name and logo and will be submitted, dependent on what
product you choose to the Apple App Store, Blackberry App World, Android Market or Ovi Store
(the “App Store”)
by LAL. Your App will allow your listeners to stay connected to your station or webcast whenever their
Apple Device is on a 3G, EDGE or WiFi network and your station or webcast is making a signal available.
By paying a one-time fee (different fees dependent on selected Product), LAL will develop and test Your App,
submit it to the App Store for approval, and collect payments on your behalf (the “Service”). You control
whether Your App is available for a fee (e.g., $0.99) or free but advertiser supported. In both cases, you can
earn money from the distribution and use of Your App.
If you are resident of Germany, we will add to the fees stated in this document or on the website the German
VAT of 19%.
1. ACCEPTANCE OF TERMS
These Terms of Use, including the Introduction and Background Information set forth above (the “Terms”),
govern your use of the Website and the Service.
PLEASE READ THESE TERMS CAREFULLY AS THEY CREATE A BINDING LEGAL CONTRACT
BETWEEN YOU AND LAL. BY ACCESSING THE WEBSITE OR USING THE SERVICE IN ANY
MANNER, U HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH
THE TERMS, INCLUDING AS SUCH TERMS MAY BE AMENDED BY LAL FROM TIME TO TIME, IN
ITS SOLE DISCRETION, AS SET FORTH BELOW. IF AT ANY TIME YOU DO NOT AGREE TO THESE
TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY LAL, THEN YOU MUST
IMMEDIATELY TERMINATE YOUR USE OF THE WEBSITE OR THE SERVICE.
You may receive an additional copy of these Terms by e-mailing us at Terms@spodtronic.com and identifying
the subject line of the e-mail as “Terms of Use.”
2. ELIGIBILITY
You represent and warrant that you are at least the age of majority in the jurisdiction where you are located
and fully able, competent and authorized to enter into and be bound by these Terms. If you are using the
Website or accepting the Services on behalf of a company, entity or organization such as a terrestrial radio
station, (collectively “Service Customer”), then you represent and warrant that you: (1) are an authorized
representative of that Service Customer with the authority to bind such organization to these Terms and (2)
agree to be bound by these Terms on behalf of such Service Customer.
3. PRIVACY POLICY
Your privacy is important to LAL. Following our Privacy Policy: LAL take appropriate steps to maintain the
security of your data on Spodtronic website. LAL does not generally seek to collect sensitive personal data
through this site. If we do seek to collect such data, we will ask you to consent to our proposed uses of the
data.
4. MODIFICATION OF THE TERMS
LAL reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any
time and from time to time with or without specific notice to you other than through posting such modified
Terms on the Website. The Terms will be identified as of the most recent date of revision. Notwithstanding
the preceding two sentences, no modifications to these Terms will apply to any dispute between you and LAL
that arose prior to the date of such modification or to any order you have made for Services prior to the date
of such modification. Please check these Terms periodically for any changes. Your use of the Website or the
Services after the posting of changes constitutes your binding acceptance of such changes. If you are
dissatisfied with the Website or the Services, then you agree that your sole and exclusive remedy is to
discontinue any use of the Website or the Services.
5. DESCRIPTION OF SERVICES FOR SERVICE CUSTOMERS
5.1 Submission and Acceptance.
LAL allows you to brand an App using your station logos, trade
names, trademarks, and service marks and logos (“Your Marks”). You may only upload
Your Marks to the extent you have the right to reproduce, modify, distribute, use, and
otherwise exploit Your Marks in an App and on and through the Website and the App Store.
Upon submission of Your Marks, you will have the ability to click “Proceed” and to contract
LAL to create a branded App for your use, subject to the then-applicable LAL Price-List for
the selected Product. LAL will handle the submission of Your App to the App Store for review and
acceptance and distribution through the App Store including submitting Your App, the App Store's
Licensed Application Information, and any associated metadata for Your App, in a format and
manner prescribed by the App Store. Notwithstanding the foregoing language in this paragraph,
LAL cannot guarantee the App Store's acceptance of Your App and makes not representation or
warranty about the acceptance of Your App for distribution through the App Store.
5.2 Metadata for Your App.
As part of the process of having LAL create Your App, you agree to provide
LAL with the metadata it needs to submit Your App to the App Store, including but not limited to (a) the title
and version number of each of Your Apps; (b) the countries you designate, in which you wish the App Store
to allow end-users to download Your App; (c) any copyright or other intellectual property rights
notices; and (d) your end-user license agreement (“Your EULA”), if any.
5.3 Content Available Through Your App.
Your App will provide users of Your App with the ability to
listen to your over-the-air terrestrial broadcast (“Your OTA Broadcast”) and any Internet-only sidechannels
(“Your IO Broadcast(s)”) you may wish to make available through your station’s website.
LAL will exercise no control over the content in Your OTA Broadcast or Your IO Broadcast.
5.4 Responsibility for Content.
You are solely responsible for all content made available through Your
App, excluding only advertising provided by LAL, if any. For the avoidance of doubt, you are
responsible for clearing the rights to any sound recordings and musical works made available on Your
OTA Broadcast and/or Your IO Broadcasts, and for paying any royalties that may be due to any sound
recording copyright owner, musical work copyright owners, performing rights organization, union,
guild or any other entity that has rights in or to any content made available by you through Your App.
Excluding the advertising banners delivered by LAL, if any.
5.5 Pricing of Your App.
If you elect to sell Your App, You will have sole control over the pricing of
Your App on the App Store, you can choose from a price Range starting at $0.99 up to $9.99 in One-
Dollar Steps.
5.6 Fee Collection.
(a) Sale of Your App. If you elect to charge a fee for the distribution of Your App through the
App Store (“Your App Fee”), then LAL will collect Your App Fee from the App Store, net of
the App Store's commissions (the “Your Net App Store App Fee”), and remit to you 70% percent of
Your Net App Store App Fee (the “Your Net Net App Fee”), if any.
(b) Advertising Supported Distribution. If you elect to have advertising inserted into Your App (Banner
Advertising displayed on the top of Your App Screen, LAL will not touch your advertising in the
audio stream), then LAL will automatically mandated by you for selling such advertising inventory
for Your App and will remit to you 60% percent of the net proceeds LAL receives from any advertiser
or advertising broker or agency (the “Net Advertising Fee”), if any. The Net Advertising Fee and
Your Net Net App Fee are, collectively, “Your Fees.”
5.7 Payment of Your Fees.
(a) Timing of Payments. LAL will account for Your Fees on a cash basis, recording Your Fees in the
Accounting Period (defined below) in which they are received from the App Store or a third party. Within
sixty (60) days following the end of each Accounting Period, LAL will pay Your Fees to you as
specified below.
(b) Currency and Method of Payment. Payments made by LAL will be made in US-Dollar. Payment may
be remitted via PayPal, wire transfer or check, at LAL’s option. At a minimum, you must provide
LAL with a physical mailing address and wire transfer instructions or a PayPal account. You are
responsible for keeping such information current with LAL for so long as Your App is available
through the App Store and for six (6) months following the removal of Your App from the App Store.
You acknowledge and agree that PayPal or your bank or financial institution may deduct a fee for the
receipt of an electronic or wire transfer, and such fee will be deducted from Your Fees (i.e., payments
from LAL may be reduced by a fee levied by your bank).
(c) Accounting Period. The Accounting Periods are the four calendar quarters: January – March, April –
June, July – September, and October – December.
(d) Minimum Account Balance. LAL will pay you Your Fees when your account balance equals or
exceeds Fifty US-Dollars ($50) (the “Minimum Balance”). When an account balance is less than the
Minimum Balance, LAL will roll over such funds to subsequent Accounting Periods until such time
as the Minimum Balance is reached, at which time the account balance will be paid out pursuant to
5.7(a) of these Terms.
(e) Payment Reports. LAL will provide you with access to a password-protected web page on the
Website, web site maintenance and other general web site unavailability excepted, whereby you will
be permitted to track Your Fees.
6. FEES FOR SERVICES
6.1 Service Fee for Your App.
By submitting Your Marks through the Webiste and clicking Register for the provisioning of the Services, you
agree to pay LAL the amount set forth on the Website page at the time you click Register (the “Service
Fees”). The Service Fees will be paid via your PayPal Account after you have clicked Register. You agree to
pay to LAL the full, set forth, non-refundable Service Fees. Not until LAL received the full payment, LAL has
the full obligation to fulfill the Service.
6.2 Updates of Your App.
a) In case that the App Store rejects Your App, due to content in Your App which is inaccurate, offensive,
indecent or objectionable, or you provide too high bandwith of Your OTA Broadcast or Your IO
Broadcast Stream in Your App, or any other reasons where LAL is not responsible for.
or b) in case that you want to add some streams or change the source links within Your App
an Update is necessary, i.e. LAL has to transmit Your App again for approval to the App Store.
For this service and time effort for LAL we charge an amount of One Hundred and Fifty USDollars
($150) in case you are a resident of Germany we charge an amount of Ninety Nine EUR (EUR 99) plus German VAT.
7. OWNERSHIP; PROPRIETARY RIGHTS
The Website and the Services are owned and operated by LAL. The content, visual interfaces, interactive
features, information, graphics, design, compilation, computer code, products, software, services, and all other
elements of the Website and the Services that are provided by LAL (the “LAL Materials”) are protected
German copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant
intellectual property and proprietary rights, and applicable laws. LAL Materials not include Your Marks or
any content included in Your OTA Broadcast or Your IO Broadcasts. All LAL Materials are the property of
LAL or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks,
and trade names contained in the LAL Materials are proprietary to LAL or its affiliates and/or third-party
licensors. Except as expressly authorized by LAL, you agree not to sell, license, distribute, copy, modify,
publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make
unauthorized use of the LAL Materials. LAL reserves all rights not expressly granted in these Terms. You
shall not acquire any right, title or interest to the LAL Materials, except for the limited rights set forth in these
Terms.
8. LICENSE TO SERVICE CUSTOMER’S MARKS
If you upload Your Marks to the Website and Accept the Services, you hereby grant LAL a limited, nonsublicenseable,
irrevocable, royalty free license for so long as Your App is made available through the App
Store, to display Your Marks on the Website and to use Your Marks solely with respect to marketing and
advertising the Website and the Services, including in print, via the Internet, Television, Video and through
any other distribution channels or media now known or hereafter developed or created. LAL’s use of Your
Marks is subject to the following conditions: (1) it will keep intact any of your proprietary notices; (2) it will
comply with your trademark use guidelines as provided to LAL in writing; (iii) it acknowledges that all
goodwill generated through its use of Your Marks will inure to the benefit of you; (4) it hereby assigns and
agrees to assign to you any and all goodwill generated through its use of Your Marks, without any payment or
other consideration to it, and further agrees to take all actions necessary to effect such assignment; and
(v) within six (6) months of the removal of Your App from the App Store, it shall cease using Your Marks.
9. CONTENT DISCLAIMER
You understand that when using the Website you may be exposed to content from a variety of sources
(“Third-Party Content”), and that LAL is not responsible for the accuracy, integrity, qualify, legality,
usefulness, safety, or intellectual property rights of or relating to such Third-Party Content. You further
understand and acknowledge that you may be exposed to Third-Party Content that is inaccurate, offensive,
indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or
remedies you have or may have against LAL with respect thereto. LAL does not endorse any Third-Party
Content on any App, including Third-Party Content in any OTA Broadcast or IO Broadcast. Under no
circumstances will LAL be liable in any way for or in connection with any Third-Party Content, including,
but not limited to, for any inaccuracies, errors or omissions in any Third-Party Content, any intellectual
property infringement with regard to any Third-Party Content, or for any loss or damage of any kind incurred
as a result of the use of any Third-Party Content posted, electronically mailed or otherwise displayed or
transmitted through the Website.
10. MONITORING USERS AND CONTENT
You understand that all Third-Party Content is the sole responsibility of the person from whom such Third-
Party Content originated. This means that you, and not LAL, are entirely responsible for Your Marks that you
upload, post, e-mail, transmit or otherwise submit for use with the Services. LAL does not control Third-
Party Content posted by others and does not have any obligation to monitor Third-Party Content for any
purpose. If at any time LAL chooses, in its sole discretion, to monitor Third-Party Content, LAL nonetheless
assumes no responsibility for such Third-Party Content, no obligation to modify or remove any Third-Party
Content, and no responsibility for the conduct of the user submitting any such Third-Party Content. You
acknowledge that LAL may or may not pre-screen Third-Party Content, but that LAL and its designees shall
have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Third Party
Content that is available on the Website. Without limiting the foregoing, LAL and its designees may, at any
time and without prior notice, remove any Third-Party Content that in the sole judgment of LAL violates
these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated
with the use of any Third-Party Content, including any reliance on the accuracy, completeness, usefulness or
legality of such Third-Party Content.
11. REMOVAL OF CONTENT
LAL and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove
any Third-Party Content, including Your Marks, from the Website or Your App, in whole or in part, at any
time for any reason or no reason, with or without notice and with no liability of any kind.
12. PROHIBITED USES
12.1 As a condition of your use of the Website and the Services, you will not use the Website or the
Services for any purpose that is unlawful or prohibited by these Terms or in the territories where you
are located or where you make Your App available. Access to the Website and the Service from
territories where their access or use thereof is illegal is strictly prohibited. You are responsible for
complying with all local rules, laws, and regulations including, without limitation, rules about
intellectual property rights, the Internet, technology, data, electronic mail, and privacy.
12.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any portion of the
Website, use of the Website, access to the Website, or Third-Party Content obtained through the
Website, for any purpose other than the purposes set forth and permitted under these Terms.
12.3 You agree not to intentionally interfere with or damage, impair or disable the operation of the Website
by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or
other malicious or harmful code.
12.4 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related
features of the Website, features that prevent or restrict the use or copying of any content accessible
through the Website, or features that enforce limitations on the Website.
12.5 You agree not to attempt to gain unauthorized access to the Website, or any part of it, other accounts,
computer systems or networks connected to the Website, or any part of it, through hacking, password
mining or any other means or interfere or attempt to interfere with the proper working of the Website
or any activities conducted on the Website.
12.6 You agree not to obtain or attempt to obtain any materials or information through any means not
intentionally made available through the Website. You agree neither to modify the Website in any
manner or form, nor to use modified versions of the Website, including, without limitation, for the
purpose of obtaining unauthorized access to the Website.
12.7 You agree that you will not use any robot, spider, scraper, or other automated means to access the
Website for any purpose without our express written permission or bypass our robot exclusion
headers or other measures we may use to prevent or restrict access to the Website.
12.8 You agree not to utilize framing techniques to enclose any trademark, logo, or other LAL materials
without our express written consent. You agree not to use any meta tags or any other “hidden text”
utilizing LAL’s name or trademarks without our express written consent.
12.9 You will promptly remove any links that LAL finds objectionable in its sole discretion. You agree not
to use any LAL logos, graphics, or trademarks as part of the link without our express written consent.
12.10 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to
other Users of the Website. This includes, but is not limited to, unsolicited advertising, promotional
materials or other solicitation material, bulk mailing of commercial advertising, chain mail,
informational announcements, charity requests, and petitions for signatures.
12.11 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source
code of the Website or Your App any part thereof, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation.
12.12 You agree not to modify, adapt, translate or create derivative works based upon the Website or Your
App or any part thereof, except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
13. ACCOUNT INFORMATION
In order to access some features of the Website, including the creation of Your App and maintaining your
payee information for the payment of Your Fees, you will have to create an account on the Website. You
agree that the information you provide to LAL upon registration and, at all other times, will be true, accurate,
current, and complete. You also agree that you will ensure that this information is kept accurate and up-todate
at all times that Your App is available on the App Store and for the six (6)-month period following the
removal of Your App from the App Store. You acknowledge, consent and agree that LAL may access,
preserve and disclose your account information and Your Marks and any other information submitted by you
if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably
necessary to: (1) comply with legal process; (2) enforce these Terms; (3) respond to a claim that any content
provided by you violates the rights of third parties; (4) respond to your requests for customer service; or (5)
protect the rights, property, business interests or personal safety of LAL, its users or the public.
14. PASSWORD
When you register for yourself or on behalf of a Service Customer, you will be asked to provide a password.
As you will be responsible for all activities that occur under your password, including the ordering of the
Services, you should keep your password confidential. You are solely responsible for maintaining the
confidentiality of your account and password, and any credit card or payee information submitted thereunder,
and for restricting access to your computer, and you agree to accept responsibility for all activities that occur
under your account or password. If you have reason to believe that your account is no longer secure (for
example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you
are required to immediately notify LAL. You may be liable for the losses incurred by LAL or others due to
any unauthorized use of your account.
15. DEALINGS WITH ADVERTISERS
15.1 Website Users.
LAL reserves the right to provide advertising on and through the Website. All
Revenues of Advertising on the Website remain at LAL to 100%.
15.2 Service Customers.
To the extent you elect to have banner advertising inserted into Your App for
display, you agree that LAL will secure such advertising on your behalf and pay you Your Net
Advertising Fee pursuant to 5.6(b) above. Notwithstanding the preceding sentence, LAL makes no
claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality,
legality, nature, availability or reliability of any advertising provided for Your App or content linked
to by Your App, and you hereby waive any and claims that you may have against LAL for any
advertising sold by it on your behalf.
16. LINKS AND THIRD PARTY CONTENT
LAL or third parties may provide links on the Website or through Your App to other sites or content
(“Reference Sites”). LAL has no control over such Reference Sites or content, and therefore makes no claim
or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature,
availability or reliability of Reference Sites or content linked to by the Website. LAL provides links to you
only as a convenience, and the inclusion of any link on the Website does not imply our affiliation,
endorsement or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE
SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON
REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN
RISK. When you leave the Website, our Terms and Privacy policy no longer govern. You should review
applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
17. AVAILABILITY OF WEBSITE
LAL may make changes to or discontinue any of the media, web communities, products, or services available
within the Website at any time, and without notice. You agree that any changes to or discontinuation of the
Website by LAL will be without liability to you, even if such changes or discontinuation results in your loss
of access to or use of Your Marks or any other content. The media, products or services on the Website may
be out of date, and LAL makes no commitment to update these materials on the Website.
18. TERMS OF USE VIOLATIONS; TERMINATION
18.1 LAL.
You agree that LAL, in its sole discretion and for any or no reason, may terminate any user or
Service Customer account (or any part thereof) you may have on the Website or your use of the
Website, and remove and discard all or any part of your account at any time, with or without notice;
provided, however, that the termination of your account will not terminate LAL’s obligation to pay
you and of Your Fees that you are otherwise entitled to. You agree that any termination of your access
to the Website or any account you may have or portion thereof may be effected without prior notice,
and you agree that LAL shall not be liable to you or any third-party for any such termination, other
than for the payment to you of Your Fees. LAL does not permit infringing activities on the Website,
and reserves the right to terminate access to the Website, and remove all content submitted, by any
persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity may be
referred to appropriate law enforcement authorities. These remedies are in addition to any other
remedies LAL may have at law or in equity.
18.2 User.
If you are dissatisfied with the Website, please let us know by electronic mailing us at
support@spodtronic.com. Your input is valuable to us. Your only other remedy with respect to any
dissatisfaction with (a) the Website, (b) any term of these Terms, (c) any policy or practice of LAL in
operating the Website or providing the Service, or (d) any content or information transmitted through
the Website, is to terminate these Terms and your account. You may terminate these Terms at any
time by closing your account, discontinuing your use of any and all parts of the Website, and
providing LAL notice of termination by e-mailing us at accounts@spodtronic.com. Notwithstanding
the termination of your Service Customer account, LAL will be obligated to continue paying you any
of Your Fees to which you are entitled.
19. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify and hold harmless LAL, and its parent, subsidiaries, affiliates or any related
companies (including those which share substantially common ownership), its suppliers, licensors and
partners, and the officers, directors, employees, agents and representatives of any of them from any and all
claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees) arising
out of: (1) your use or misuse of the Website; (2) LAL’s use of Your Marks; (3) your violation of these Terms;
(4) your violation of the rights of any other person or entity, including claims that Your Marks infringe or
violate any third party intellectual property rights; and (5) your breach of the foregoing representations,
warranties, and covenants. LAL reserves the right, at your expense, to assume the exclusive defense and
control of any matter for which you are required to indemnify us and you agree to cooperate with our defense
of these claims. You agree not to settle any matter without the prior written consent of LAL. LAL will use
reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
20. DISCLAIMERS; NO WARRANTIES
20.1 No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,
LAL, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH RESPECT TO THE WEBSITE,
THE SERVICES, AND YOUR APP. NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM LAL OR THROUGH THE WEBSITE WILL CREATE
ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE
THAT AS USED IN THIS SECTION 20, THE TERM LAL INCLUDES LAL’ OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS,
AFFILIATES, AND SUBCONTRACTORS.
20.2 "As is" and "As available" and "With All Faults”.
YOU EXPRESSLY AGREE THAT THE USE OF
THE WEBSITE, THE SERVICES, AND YOUR APP IS AT YOUR SOLE RISK. THE WEBSITE,
THE SERVICES AND YOUR APP, AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE,
SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH
THE WEBSITE, THE SERVICES OR YOUR APP, ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
20.3 Platform Operation and Content.
LAL, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND
PARTNERS DO NOT WARRANT THAT THE THE WEBSITE, THE SERVICES OR YOUR APP
OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES
OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE
FOREGOING WILL BE CORRECTED.
20.4 Accuracy.
LAL, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS
OF THE USE OF THE WEBSITE, THE SERVICES, YOUR APP, ANY THIRD-PARTY
ADVERTISING OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE.
20.5 Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS,
DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH
THE WEBSITE AND YOUR APP OR ANY REFERENCE SITES AT YOUR OWN DISCRETION
AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
21. LIMITATION OF LIABILITY AND DAMAGES
21.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY,
INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL LAL OR ITS AFFILIATES,
CONTRACTORS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR
SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS,
DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS
OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE WEBSITE, THE
SERVICES, YOUR APP OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS
WITH LAL, EVEN IF LAL OR A LAL AUTHORIZED REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO YOU. IN SUCH CASES, LAL’S LIABILITY WILL BE LIMITED TO THE EXTENT
PERMITTED BY LAW.
21.2 Limitation of Damages.
IN NO EVENT SHALL LAL OR ITS AFFILIATES, CONTRACTORS,
EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL
LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING
OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE, THE
SERVICES OR YOUR APP (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) FIVE
HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID LAL IN THE 12
MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
21.3 Reference Sites.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES
INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY
REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN LAL AND
RECEIVED BY YOU THROUGH OR ADVERTISED ON THE WEBSITE OR THROUGH YOUR
APP OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
22. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN
22.1 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON
IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF
YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS,
EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE
ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES,
REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE
FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE
LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
22.2 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT LAL HAS OFFERED THE
WEBSITE, THE SERVICES AND YOUR APP, SET IT PRICES AND ENTERED INTO
THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE
LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY
DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN
REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND
LAL, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF
LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN
BETWEEN YOU AND LAL. YOU ACKNOWLEDGE AND AGREE THAT LAL WOULD
NOT BE ABLE TO PROVIDE THE WEBSITE, THE SERVICES OR YOUR APP TO YOU
ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
23. MUSIC; DIGITAL MILLENNIUM COPYRIGHT ACT
LAL does not pay any royalties for the use of music through Your App. You are solely responsible for the
payment of any royalties that may be due from the use of musical works or sound recordings through Your
App, including uses on Your OTA Broadcasts and Your IO Broadcasts, including, but not limited to, any
payments that may be due any music publishers, record labels, performing rights societies, performers,
unions, guilds or any other third party claiming an interest, including a copyright interest, in any musical work
or sound recording. If you are a copyright owner or an agent thereof, and you believe either any content
hosted on the Website infringes your copyrights, then you may submit a notification pursuant to the Digital
Millennium Copyright Act (“DMCA”) by providing LAL’s Designated Copyright Agent with the following
information in writing:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted
works on the Website are covered by a single notification, a representative list of such works on the
Website;
- identification of the 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 LAL to locate the material;
- information reasonably sufficient to permit LAL to contact the complaining party, such as an address,
telephone number, and, if available, an electronic mail address at which the complaining party may be
contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner
complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am
under the good faith belief that the use of the copyrighted content that is identified herein is not
authorized by the copyright owner, its agent, or the law.”); and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the
complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly
infringed (for example, “I swear, under penalty of perjury, that the information in this notification is
accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of
the copyright(s) that is/are allegedly infringed by the aforementioned content.”).
LAL does not permit copyright infringing activities and infringement of intellectual property rights on the
Website, and LAL will remove all unauthorized third-party content if properly notified that such content
infringes on another's intellectual property rights. It is LAL’ policy to respond promptly to notices of alleged
infringement that comply with the DMCA. In addition, LAL will promptly terminate without notice the
accounts of Users that are determined by LAL to be “repeat infringers.” A repeat infringer is a user who has
been notified of infringing activity more than twice and/or has had content removed from the Website more
than twice.
LAL’ Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement
can be reached as follows: Attention:
Gary R. Greenstein 1700 K Street NW,
Fifth Floor,
Washington, DC 20006, USA or by electronic mail at copyright@spodtronic.com. For clarity, only DMCA
notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical
support or other communications should be directed to LAL customer service through
support@spodtronic.com. You acknowledge that if you fail to comply with all of the requirements of this
section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any
person who knowingly materially misrepresents that material or activity is infringing may be subject to
liability.
24. Miscellaneous
24.1 Notice.
LAL may provide you with notices, including those regarding changes to LAL’ terms and
conditions, by postings on the Website, via electronic mail, or by postal delivery. Notice sent via email
will be deemed given twenty-four hours after such e-mail is sent, unless LAL is notified that the
electronic mail address is invalid. Alternatively, we may give you legal notice by mail to a postal
address, if provided by you through the Website. In such case, notice will be deemed given three
days after the date of mailing.
24.2 Dispute Resolution.
If a dispute arises between you and LAL, our goal is to provide you with a
neutral and cost effective means of resolving the dispute quickly. Accordingly, you and LAL agree
that we will resolve any claim or controversy at law or equity that arises out of these Terms or the
Websites (a “Claim”) in accordance with one of the subsections below or as LAL and you otherwise
agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us
directly to seek a resolution. We will consider reasonable requests to resolve the dispute through
alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
(a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of Germany. You
agree that any claim or dispute you may have against LAL must be resolved by a court located in
Stuttgart, except as otherwise agreed by you and LAL or as described in the Arbitration Option
paragraph below. You agree to submit to the personal jurisdiction of the courts located within
Stuttgart for the purpose of litigating all such claims or disputes.
(b) Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where
the total amount of the award sought is less than $10,000, the party requesting relief may elect to
resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In
the event a party elects arbitration, they shall initiate such arbitration through an established
alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR
provider and the parties must comply with the following rules: (i) the arbitration shall be conducted
by telephone, online and/or be solely based on written submissions, the specific manner shall be
chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal
appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any
judgment on the award rendered by the arbitrator may be entered in any court of competent
jurisdiction.
(c) Improperly Filed Claims. All claims you bring against LAL must be resolved in accordance with this
Section 24.2 (Dispute Resolution).
All claims filed or brought contrary to this Section 24.2 (Dispute Resolution) shall be considered improperly
filed. Should you file a claim contrary to this Section 24.2 (Dispute Resolution), LAL may recover attorneys’
fees and costs up to $3,000, provided that LAL has notified you in writing of the improperly filed claim, and
you have failed to promptly withdraw the claim.
24.3 Waiver.
A provision of these Terms may be waived only by a written instrument executed by the party
entitled to the benefit of such provision. The failure of LAL to exercise or enforce any right or
provision of these Terms will not constitute a waiver of such right or provision.
24.4 Severability.
In the event that the application of any provision of these Terms to any particular facts or
circumstances shall be held to be invalid or unenforceable under the law hereof, then: (a) such
provision shall be reformed without further action by the Parties to the extent strictly necessary to
render such provision valid and enforceable when applied to such particular facts or circumstances;
and (b) the validity and enforceability of such provision as applied to any other particular facts or
circumstances, and the validity and enforceability of all of the other provisions hereof, shall in no way
be affected or impaired thereby.
24.5 Assignment.
The Terms and related Guidelines, and any rights and licenses granted hereunder, may
not be transferred or assigned by you, but may be assigned by LAL without restriction. Any
assignment attempted to be made in violation of these Terms shall be void.
24.6 No Agency.
You agree that no joint venture, partnership, employment, or agency relationship exists
between you and LAL as a result of these Terms or use of the Website or the Services. You further
acknowledge that by submitting Your Marks or other content, no confidential, fiduciary, contractually
implied or other relationship is created between you and LAL other than pursuant to these Terms.
24.7 Survival.
The Sections entitled “Ownership; Proprietary Rights,” “Password,” “Indemnification; Hold
Harmless,” “Disclaimers; No Warranties,” “Limitation of Liability and Damages,” “Limitations by
Applicable Law; Basis of the Bargain,” and “Miscellaneous” will survive any termination of these
Terms.
24.8 Headings.
The heading references herein are for convenience purposes only, do not constitute a part
of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
24.9 Entire Agreement.
This is the entire agreement between you and LAL relating to the subject matter
herein and supersedes all previous communications, representations, understandings, and agreements,
either oral or written, between the parties with respect to said subject matter. These Terms shall not
be modified except in a writing, signed by both parties, or by a change to these Terms made by LAL
as set forth in Section 4 above.
24.10 Disclosures.
The services hereunder are offered by Liquid Air Lab GmbH, Vaihinger Markt 28, 70563
Stuttgart, Germany, or by electronic mail at support@spodtronic.com. Depending upon the
jurisdiction where you reside, you may have this same information electronic mailed to you by
sending a letter to the foregoing address with your electronic mail address and a request for this
information.