End User License Agreement and Terms of Service
This Nextuner, Inc. End User License EULA and Terms of Service (this Nextuner "EULA") is a legal agreement between you, an individual user ("you";) and Nextuner, Inc. ("Nextuner", "we", "us", "our") providing, among other things, the terms and conditions for your use of Nextuner's basic and/or subscription music services, associated mobile applications, software and Internet services under our control, whether partial or otherwise, in connection with providing a platform for Nextuner's services (collectively, the "Nextuner Products and Services"), including our Web site; http://www.nextuner.com (the "Website").
We may from time to time modify these Terms of service and will post a copy of the amended Agreement on this page. If you do not agree to, or cannot comply with, the Agreement as amended, you must stop using the Nextuner Products and Services or, if applicable, cancel your subscription for Nextuner Products and Services. You will be deemed to have accepted the Agreement, as it may be amended from time to time, if you continue to use any of the Nextuner Products and Services after any amendments to such Agreement are posted on the Website.
User Account Information
To use any aspect of the Nextuner Products and Services, you may be required to register and provide certain information, including a member or user name, a password, a valid email address (the "Account Information") and your credit card information, if applicable. You agree that the Account Information and credit card information that you provide is true, accurate, current and complete information about yourself and your billing information, if applicable.
You are solely and entirely responsible for maintaining the confidentiality of your password and for any and all activities that occur with your account. If you believe someone has accessed any of the Nextuner Products and Services using your user name and password without your authorization, it is your responsibility to set up a new password. To do this, go to the Sign In screen, click the "Forgot your Password?" link, and follow the instructions. Nextuner will not be responsible for any losses arising out of the unauthorized use of your user name, password and/or account, and you agree to indemnify and hold harmless Nextuner, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
If you own a Nextuner Portable Radio Player, you agree that in connection with use of the Wi-Fi capability therein that you accept the terms of service of any service provider of such Wi-Fi service and further authorize Nextuner to accept such terms on your behalf. Nextuner will not be responsible for any losses arising out of your use of any Wi-Fi service or your violation of any Wi-Fi terms of service.
PLEASE REVIEW THESE TERMS OF SERVICE WITH YOUR PARENTS IF YOU ARE A USER BETWEEN THE AGES OF 13 AND 17. THE NEXTUNER PRODUCTS AND SERVICES ARE INTENDED FOR USERS WHO ARE AT LEAST 13 YEARS OF AGE OR OLDER. BECAUSE THE NEXTUNER PRODUCTS AND SERVICES MAY PROVIDE ACCESS TO MUSIC THAT MAY CONTAIN EXPLICIT CONTENT INCLUDING STRONG LANGUAGE OR DEPICTIONS OF VIOLENCE, SUBSTANCE ABUSE OR SEX. PARENTAL DISCRETION IS ADVISED FOR ALL USERS AGES 13 TO 17. THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY USING OR SUBSCRIBING TO THE NEXTUNER PRODUCTS AND SERVICES, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ORDER FOR YOU TO HAVE ACCESS TO THE NEXTUNER PRODUCTS AND SERVICES, THIS AGREEMENT MUST BE ACCEPTED BY YOU WITHOUT ANY MODIFICATIONS, ADDITIONS, OR DELETIONS. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE NEXTUNER PRODUCTS AND SERVICES. YOU MAY BE DENIED ACCESS TO THE NEXTUNER PRODUCTS AND SERVICES, WITH OR WITHOUT PRIOR NOTICE TO YOU, FOR NONCONFORMITY WITH ANY PROVISION OF THIS AGREEMENT.
Nextuner grants to you a limited, non-exclusive, non-transferable license to access and use the Nextuner Products and Services in the territory for which you have purchased a license for personal non-commercial purposes only. If you subscribe to any of the Nextuner Products and Services, this license is contingent upon your payment of any applicable subscription fees and your compliance with any other terms of service applicable to you as a subscriber.
By subscribing to or accessing any of the Nextuner Products and Services, you are representing to us that you are authorized to use the credit card or other form of payment you provided (including having your telecommunications carrier bill you) and that you reside in the territory for which you have purchased a license. If you are a parent or guardian paying on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such other person, any charges associated with that person's use of any of the Nextuner Products and Services, and that person's compliance with this Agreement. You agree to take such steps as are appropriate to ensure such compliance and will indemnify and hold Nextuner and its affiliates and distribution and syndication partners harmless from any breach of this Agreement. Any violation by you of the license provisions contained in this Agreement may result in the immediate termination of your right to use the Nextuner Products and Services. Nextuner reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE NEXTUNER PRODUCTS AND SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
Nextuner may terminate your access to all or any part of the website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Nextuner account (if you have one), you may simply discontinue using the website. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You agree that with regard to your access of the Nextuner Website, you will not:
- use the Nextuner Products or Services to reproduce, copy or distribute copyrighted materials;
- upload, transmit or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Nextuner;
- upload, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations;
- prevent or attempt to prevent others from using the Nextuner Products and Services or take any action designed to harm, slow down or adversely affect the Nextuner Products and Services or the Nextuner Website;
- use the Nextuner Products and Services for any fraudulent or inappropriate purpose;
- post adult-oriented material;
- use the Nextuner Products and Services to facilitate sending “spam” or unsolicited commercial email;
- copy, store, edit, change, prepare any derivative work of or alter in any way any of the tracks delivered through the Nextuner Products and Services or any cover art shown therein;
- make the Nextuner Products and Services available over a network (other than Nextuner's network) where it could be used by others;
- provide your password to any other person;
- translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Nextuner Services or any portion of them;
- circumvent any technology used by Nextuner or its licensors to protect content accessible via the Nextuner Services;
- rent, lease or sublicense any of the Nextuner Products and Services;
- collect and use any product listings, descriptions, or prices;
- use any data mining, robots, or similar data gathering and extraction tools;
- download or copy account information for the benefit of another merchant;
- frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Nextuner and our affiliates;
- use any meta tags or any other "hidden text" utilizing Nextuner's name or trademarks; or
- use the Nextuner Products and Services in any way that violates the terms of this Agreement or any Wi-Fi terms of service.
Violation of any of the foregoing may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. Nextuner reserves the right, but shall have no obligation, to investigate your use of the Nextuner Products and Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
By submitting any content, you grant Nextuner a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display the content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any intellectual property rights that may exist in such content. You also warrant that the holder of any intellectual property rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You also permit any subscriber to access, display, view, store and reproduce such content for personal use. Subject to the foregoing, the owner of such content submitted through the Products and Services retains any and all intellectual property rights that may exist in such content.
Nextuner takes no responsibility for any content contained within the Nextuner Products and Services, nor does Nextuner have any obligation to monitor such third party content. Nextuner reserves the right at all times to remove or refuse to distribute any content on the Nextuner Products and Services, such as content that violates the terms of this Agreement. Nextuner also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Nextuner, its users and the public. Nextuner will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
The Nextuner Products and Services utilize technology to protect transmitted digital information. Your use of the Nextuner Products and Services may be limited by such technology. You acknowledge that, from time to time, Nextuner may modify or discontinue using such technology. Security modifications made by Nextuner may from time to time include required or automated updates, modifications, patches, and/or reinstallations of software. IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOUR ACCESS TO THE NEXTUNER WEBSITE MAY BE TERMINATED AND YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.
As between you and Nextuner, you acknowledge that Nextuner owns or has a license to all title and copyrights and all other worldwide intellectual property rights in and to the Nextuner Products and Services, including all content on this website (other than user uploaded content), such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software. All title and intellectual property rights in and to the licensed content in the Nextuner Products and Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties.
Nextuner Trademarks and Third-Party Trademarks
The following are registered trademarks or trademarks of Nextuner: Nextuner, and its registered design logo, as well as certain other Nextuner trademarks, service marks, graphics, and logos (collectively, the "Nextuner Trademarks") used in connection with the Nextuner Products and Services. The Nextuner Products and Services may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to Nextuner Trademarks or the trademarks of any third party.
When you visit the Website, use the Products or Services or send e-mails to us, you are communicating with us electronically. By doing so, you consent to receive communications from us electronically. We will communicate with you through the Products and Services, by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THIS WEBSITE IS PROVIDED BY NEXTUNER ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEXTUNER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS WEBSITE, YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK. NEXTUNER DOES NOT WARRANT THAT THIS WEBSITE, ITS SERVERS, OR E-MAIL SENT FROM NEXTUNER ARE FREE OF VIRUSES, INTERFERENCE, HACKING OR OTHER HARMFUL COMPONENTS AND NEXTUNER DISCLAIMS ANY LIABILITY RELATING THERETO. WITHOUT PRIOR NOTICE, NEXTUNER MAY MODIFY, SUSPEND, OR DISCONTINUE THE NEXTUNER SERVICES (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER NEXTUNER ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE NEXTUNER SERVICES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY. NEXTUNER WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE, THE NEXTUNER PRODUCTS AND SERVICES, THE NEXTUNER PORTABLE RADIO PLAYER OR ANY WI-FI SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION TO US IS AT YOUR OWN RISK. NEXTUNER DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT WHEN USING THE NEXTUNER SERVICES. NEXTUNER WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH THE NEXTUNER SERVICES MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT NEXTUNER ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES. INDEMNITY
YOU WILL INDEMNIFY AND HOLD NEXTUNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OF THE NEXTUNER SERVICES OR ANY WI-FI SERVICE.
Nextuner or its business partners may present advertisements or promotional materials on or through the Website and the Nextuner Products and Services. Your dealings with, or participation in promotions of, any third-party advertisers on or through the Website are solely between you and such third party and your participation is subject to the terms of service associated with that advertisement or promotion. You agree that Nextuner is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Website.
The Website and the Nextuner Products and Services may present links to third-party web websites not owned or operated by us. We are not responsible for the availability of these third-party websites or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party website or goods or services available through any such third-party website.
You may be able to link and/or post content to or from third party websites (e.g., Facebook) and the Website. You are solely responsible for any such content you post, and for any information contained therein. You are also solely responsible for complying with any applicable law, regulation and or rule of any applicable government agency and/or such third party website.
The Nextuner Products and Services may contain content supplied by third parties and links to and from Internet websites maintained by third parties. Nextuner does not control such content or operate such third-party websites. Third party content (including advertisements) on and links on or to the Nextuner Products and Services do not constitute any endorsement by Nextuner. Nextuner is not responsible for the accuracy or reliability of third party information and you assume sole responsibility for the use of third party information.
You acknowledge that Nextuner neither endorses the contents of your communications or the communications of third parties on or relating to the Nextuner Products and Services, nor assumes the responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.
Nextuner is not involved in any transaction between you and the merchants linked from the Nextuner Products and Services. If you have a dispute with one or more merchants, you agree to release and hereby release Nextuner (and Nextuner's officers, directors, agents, subsidiaries, affiliates, employees, successors, assigns, content providers and service providers) from claims, demands, actual and consequential damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Applicable Law and Assignment
By visiting the Website or using the Nextuner Products and Services, you agree that the laws of the state of Washington DC, without regard to principles of conflict of laws, will govern these Terms of service and any dispute of any sort that might arise between you and Nextuner or its affiliates.
You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.