Do not send us,
and do not disclose, any sensitive Personal Information (e.g.,
Social Security numbers, information related to racial or ethnic
origin, political opinions, religion or other beliefs, health,
biometrics or genetic characteristics or criminal background)
through Our Services or otherwise to Us.
Before you
disclose to Us the personal information of another person, you
must obtain that person’s consent to both the disclosure and the
processing of that personal information in accordance with this
Privacy Policy.
In practice, by
using Our Services, you provide Us with implied consent for Our
marketing purposes; however, you may opt-out by instructing Us at
any time not to process your Personal Information for marketing
purposes. Just follow the unsubscribe instructions at the
bottom of emails that We send you or via Our Services.
We want to be
clear about our privacy practices so that you can make informed
choice about the use of your information; therefore, if you have
any questions about this End-User Terms & Conditions and Privacy Policy, please contact us at
support@airkast.com.
Because email communications are not always secure, please do not
include credit card or other sensitive information in your emails
to us. Also, please note that if you contact Us for
assistance, for your safety and Ours, We may need to authenticate
your identity before providing any assistance you requested.
Effective Date: July 1, 2020
This "
End-User Terms and Conditions Agreement" ("
EUTC") contains the terms and conditions for your use of a mobile app that enables radio broadcasters, shows, podcasters, etc. to extend their audio stream, social media and digital content to their audiences' mobile devices, and that AirKast, Inc. ("
us," "
we" or "
our"), the developer of this mobile app, will provide to you as an individual listener of the such radio broadcast, show or podcast ("Show Provider") and user (aka "end user") of the "AirKast Mobile App" ("
AirKast App" or "
App").
By accessing or using the AirKast App, you are accepting the terms of this EUTC (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into this EUTC on behalf of yourself or the entity that you represent.
You may access or use the AirKast App ONLY IF you are 13 years of age or older (
Minimum Age). However, if other applicable laws require you to be older than age 13 in order to use, access or purchase the AirKast App, then the Minimum Age will be the older age.
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS AND/OR USE THE OUR SERVICE OR THE AIRKAST APP.
1.
License and Access. Subject to the terms of this EUTC, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access the AirKast App solely for your own personal, noncommercial use. Once you purchase (if applicable) and download the AirKast App, we will initiate your access as an end user of such app.
1A.
Changes to the EUTC (including the Privacy Policy).
a. We reserve the right to change the EUTC, at any time, in any way, in Our sole discretion, including changing subscription fees and related terms. Any such changes will be effective immediately after We post such changes in the EUTC.
b. The revised We reserve the right to change the EUTC, at any time, in any way, in Our sole discretion, including changing subscription fees and related terms. Any such changes will be effective immediately after We post such changes in the EUTC.
c. The revised EUTC will apply to the use of the Services from the date of publication of the revised EUTC, and you hereby waive any right you may otherwise have to be notified of, or to consent to, such revisions.
d. If you do not agree to the revised EUTC, you must immediately stop using the Services.
e. It is your responsibility to be aware of the EUTC. You should therefore review the EUTC prior to each use of the Services so that you understand the current EUTC.
f. If you have the EUTC cached on your browser, you understand that the EUTC that apply to you are the most recent version appearing in a non-cached browser.
2.
Certain Restrictions Regarding Your Use. The rights granted to You in these Terms are subject to the following restrictions: (a) You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the AirKast App, whether in whole or in part, or any content displayed on the AirKast App, including all such content owned by the Show Provider ("Show Provider Content") (all content referred to herein is referred to as "Content"); (b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the AirKast App; (c) You shall not access the AirKast App in order to build a similar or competitive website, product, or service; (d) except as expressly stated herein, no part of the AirKast App (which includes all Content) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (e) any materials or information, including any Content, whether audio, visual or otherwise, in any form now or later known, that you receive, view or use through the AirKast App are for Your sole use and may not be copied, shared, or otherwise distributed to any third party; and (f) You will not hack or modify the AirKast App to set up robots to automate or otherwise manipulate content on the AirKast App.
3.
Your Data. Your use of the AirKast App is your authorization for us, as your agent, to access third party sites which you designate in order to retrieve information. You are licensing to us and authorizing us to use any information, data, passwords, usernames, PINS, personally identifiable information or other content you provide through the AirKast App ("
Your Data") in order for you to use the AirKast App, and that we may retrieve Your Data on your behalf for purposes of providing the AirKast App, to offer products and services, and for other permissible business purposes. Except as otherwise provided herein, we may store, use, change, or display such information or create new content using such information. Information or content (such as but not limited to audio and video recordings, and images) which you have created and submitted via the AirKast App may be used by AirKast or the Show Provider in the manner which includes but not limited to broadcast as part of the Show Provider's Content or displayed and reused on publicly accessible websites. We do not sell, trade, or otherwise transfer to outside parties your personally identifiable information. This does not include trusted third parties who assist us in operating our website, conducting our business, or servicing you, so long as those parties agree to keep this information confidential. We may also release your information when we believe release is appropriate to comply with the law, enforce our site policies, or protect ours or others rights, property, or safety. However, non-personally identifiable visitor information may be provided to other parties for marketing, advertising, or other uses. Our use of Your Data and any aggregated data derived from Your Data is governed by the AirKast Privacy Policy at: http://airkast.com/privacy_policy/policy
4.
Accuracy of Your Data. You represent and agree to the following with respect to your use of the AirKast App: (a) all of Your Data provided us is accurate, current, and complete; (b) you will not misrepresent your identity or account information; (c) you will keep all account information secure, up to date and accurate; and (d) you are a legal owner, or an authorized user, of the accounts at third party sites (i.e., social media sites) which you include or access through the AirKast App, and that you have the authority to (1) designate us and our service providers as your agent, (2) use the AirKast App, and (3) give us and our service providers the passwords, usernames, and all other information you provide.
5.
Your Responsibilities. You are responsible for maintaining the confidentiality of Your Data and are fully responsible for all activities that occur through the AirKast App that you downloaded. You agree to immediately notify Us of any unauthorized use, or suspected unauthorized use of your copy of the App, Your Data (as defined below) or any other breach of security. We cannot and will not be liable for any loss or damage arising from Your failure to comply with the terms of this EUTC.
a. You also represent and warrant that Your Data and the use and provision of Your Data on the AirKast App (when applicable) will not: (1) infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (2) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (3) be fraudulent, false, misleading or deceptive; (4) be defamatory, obscene, pornographic, vulgar or offensive; (5) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (6) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (7) promote illegal or harmful activities or substances.
b. In the event Your Data is reported for possible violations of these standards or any other terms in this EUTC, we may (in our sole discretion) remove such data without any notice to you.
6.
Third Party Services. With respect to any third party sites we may enable you to access through the AirKast App, you agree to the following: (a) you are responsible for all fees charged by all such third parties; (b) you will comply with all terms and conditions of third parties and agree that this EUTC neither amends any of those terms and conditions, nor is in conflict with any of those terms and conditions; (c) any links to third party sites that we may provide are for your convenience only, and we do not sponsor or endorse those sites; and (d) we are not responsible in any way or liable for any damages or costs arising from your use of any third party sites and services.
7.
Limitations of AirKast App. When using the AirKast App, you may incur technical or other difficulties. We are not responsible for any technical or other difficulties or any resulting damages that you may incur. We reserve the right to change, suspend or discontinue any or all of the AirKast App at any time without prior notice.
8.
Acceptance of the Services and AirKast App. Your use of the AirKast App constitutes your acceptance of the Services and the AirKast App, and you understand and agree that the Services and AirKast App are subject to change from time to time, in our sole discretion. We will post notifications to all end users of any material change through the AirKast App. Your continued use of the Services and/or the AirKast App will indicate your acceptance of the changes.
9.
Ownership. You agree that AirKast and its licensors (whichever applicable) retain all ownership, intellectual property and any other proprietary rights in the AirKast App, associated content, technology, mobile applications and websites.
10.
End-User Conduct. You agree not to use the AirKast App or the content or information delivered through the AirKast App in any way that would: (a) be fraudulent or involve the sale of counterfeit or stolen items, including but not limited to use of the AirKast App to impersonate another person or entity; (b) violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (c) create liability for AirKast or its service provider or cause AirKast to lose the services of its service providers; (d) access the information and content programmatically by macro or other automated means; or (e) use the AirKast App in such a manner as to gain unauthorized entry or access to computer systems.
11.
Indemnification.
a. You will, and hereby do, indemnify, defend, and hold harmless AirKast, any Show Provider whose Show Provider Content is available through the AirKast App, and its third party service providers and such Show Provider's and third party service providers' officers, directors, employees and agents, and Our current and former managers, officers, directors, employees, contractors, agents, representatives and affiliates from and against any and all liabilities, claims, (including third-party claims), damages, losses, costs (including reasonable attorneys' fees), arising directly or indirectly from: (i) your violation of these terms; (ii) your use of the Services; (iii) your violation of the rights of any third party; or (iv) your actual or alleged infringement of any third party proprietary or intellectual property right arising out of the duplication, sale, distribution, or use of the Services or Content. If you are a Legal Guardian User of Our Services, then your indemnification obligations in this Indemnification Section extend to include any uses, actions or violations specified herein that were initiated or undertaken by your Minor User.
b. We reserve 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. We will invoice you for all expenses of Our defense, and you will pay such invoices in full immediately on presentation. You agree not to settle any matter without Our prior written consent.
12.
DISCLAIMER OF WARRANTIES. YOU AGREE YOUR USE OF THE AIRKAST SERVICE AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE, AIRKAST AND OUR SHOW PROVIDERS AND SERVICE PROVIDERS, DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF THE AIRKAST APP, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE, AIRKAST AND OUR SHOW PROVIDERS AND SERVICE PROVIDERS, MAKE NO WARRANTY THAT THE AIRKAST APP (i) WILL MEET YOUR REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE AIRKAST APP WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE AIRKAST APP WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE AIRKAST APP OR RELATED TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE AIRKAST APP IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AIRKAST, OUR SHOW PROVIDERS OR THIRD PARTY SERVICE PROVIDERS THROUGH OR FROM THE AIRKAST APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13.
LIMITATION OF LIABILITY.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING them AND TO STOP USING THE AIRKAST APP.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, and CAUSES OF ACTION ARISING FROM OR RELATED TO THESE USER TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION INCLUDING NEGLIGENCE), WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU HAVE PAID TO US FOR USE OF OUR SERVICES OR THE AIRKAST APP IN THE CURRENT CALENDAR YEAR OF YOUR SUBSCRIPTION OR LICENSE TERM OR ONE HUNDRED DOLLARS ($100) (WHICHEVER GREATER), PROVIDED YOU DO NOT HAVE ANY THEN-EXISTING PAYMENT OBLIGATIONS TO US.
THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS OR ANY OTHER THIRD PARTY CONTRACTORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AIRKAST OR ITS PARTNERS, AFFILIATES OR SUBSIDIARIES, OR ANY SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES OR LICENSORS OF AIRKAST OR OF ITS PARTNERS, AFFILIATES OR SUBSIDIARIES BE JOINTLY OR SEVERALLY LIABLE TO YOU FOR ANY PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THE AIRKAST APP (INCLUDING THE CONTENT), WHETHER SUCH DAMAGE IS FORESEEABLE OR NOT, AND WHETHER OR NOT WE, AIRKAST, OUR SHOW PROVIDERS, THIRD PARTY PROVIDERS OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ACCESS TO AND USE OF THE AIRKAST APP and OUR SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF LIABILITY FOR CERTAIN DAMAGES; THEREFOR, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH IN THESE TERMS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
14.
Termination. We may, without any liability to you whatsoever, suspend or terminate (permanently or otherwise) your rights to use the AirKast App (including your account, if applicable) at any time for any reason at our sole discretion, including for any use of the AirKast App in violation of the terms of this EUTC. Upon termination of your rights under these Terms, your right to access and use the AirKast App will terminate immediately.
15.
Other Terms. You may not assign this EUTC. A determination that any provision of this EUTC is unenforceable or invalid shall not render any other provision of this EUTC unenforceable or invalid.
This EUTC and the resolution of any disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. You consent to the jurisdiction and venue of the state and federal located in Alameda County, California for any action permitted under this EUTC, challenge thereto, or judgment upon the award entered.
Unless expressly provided in this EUTC, no remedy specified herein is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other right or remedy provided herein or available at law or in equity. If any provision hereof will be held by a court of competent jurisdiction to be invalid or voidable, such provision will be deleted and the remainder thereof will remain in full force and effect, and the parties will substitute for the invalid or voidable provision a valid provision most closely approximating the economic effect and intent of the invalid or voidable provision.
This EUTC is not intended to, and shall not, provide any party who is not a party to this EUTC with any rights of any nature whatsoever against any of the parties to this EUTC, and no party who is not a party to this EUTC shall have any right, power, or privilege in respect of any party hereto, or have any benefit or interest, arising out of this EUTC.
No delay or omission by AirKast to exercise any right or power it has under this EUTC will be construed as a waiver of such right or power. A waiver by AirKast of any breach by the End User will not be construed to be a waiver of any succeeding breach or any other covenant by the End User.
Notwithstanding anything to the contrary hereunder, YOU AND AIRKAST WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Notwithstanding anything to the contrary hereunder, ALL CLAIMS AND DISPUTES RELATED TO THIS EUTC MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE END USER LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER END USER.
16. Notice Requirement and Informal Dispute Resolution.
Before filing a claim against Us, you agree to try to resolve the dispute informally by sending to support@airkast.com a written "Notice of Dispute" (
"Notice") describing the nature and basis of your claim or dispute, your phone number, email and formal mailing address, and the requested relief. After the Notice is received, We will try to resolve the dispute informally by contacting you through email or telephone. If a dispute is not resolved within 45 days after Our receipt of your Notice, then you or We may bring a formal proceeding as permitted below. If applicable, the amount of any settlement offer made by any party may not be disclosed to the arbitrator (as further described below) until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
17. Force Majeure.
Under no circumstances will We be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, pandemics, endemics, quarantines, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or nonperformance of third parties
18.
Release and Waivers
a. Release. You hereby release and forever discharge Us (and Our officers, employees, agents, affiliates, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, Our Services, including any interactions with, or act or omission of, other users or any third party sources and providers.
b. Residents of California. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD have MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR or released party."
REGARDLESS OF THE STATE IN WHICH YOU RESIDE, YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS CALIFORNIA CIVIL CODE SECTION 1542, including any amended version of this california code section 1542.
c. Jurisdictions Prohibiting Our Limitation of Liability. Notwithstanding any provision of these User Terms, if your jurisdiction has laws or regulations specific to waiver or liability that conflict with this Section then Our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (i) death or personal injury caused by Our negligence or that of any of Our officers, employees or agents; (ii) fraudulent misrepresentation; or (iii) any liability which it is not lawful to exclude either now or in the future.
19.
Time Limits. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
20.
Copyright and Other Intellectual Property Infringement Claims. We take the protection of Intellectual Property seriously. We respect the rights of others' content and Intellectual Property, and we expect our end users to do the same. You agree not to copy, distribute, display or otherwise reproduce any of the information or Content available through the AirKast App without receiving our prior written permission. We reserve the right (in our sole discretion) to terminate and/or disable the accounts (or apps) of yours and any other end users for materially or repeatedly infringing the intellectual property rights of AirKast, its licensors, Show Providers and other third party contractors and any other third parties in accordance with all applicable laws. Claims of copyright or other intellectual property infringement can be sent to our Copyright Agent, at support@airkast.com.
Any claims of alleged copyright or other intellectual property infringement must include:
a. Identification of the intellectual property works which are the subject of the claimed infringement.
b. Identification of the claimed infringing activity, including within the AirKast App of the infringing copy.
c. A statement with the signature of the person making the claim, which states that he/she is the owner, or authorized to act on behalf of the owner, of the infringed intellectual property, along with current contact information, which should include a mailing address, telephone number, and email address.
d. A statement of a good faith belief that the subject use is not authorized by the intellectual property owner.
e. A statement as follows: "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the intellectual property that is allegedly infringed."
If a statement does not include all required elements, it will not be treated as actual notice under the U.S. Digital Millennium Copyright Act (17 U.S.C. §512), or other applicable U.S. intellectual property law.
Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us information similar to that above with regards to any allegation of trademark infringement, and we will address it as soon as practicable.
In the event we receive a claim, which substantially complies with the complaint requirements detailed above, we will remove the alleged infringing material from our AirKast App, and notify you that the material has been removed. You may provide us with a counter notice if you believe the claim is in error. If you are the subject of multiple claims, we may, in our sole discretion, terminate your account related to or your access to the AirKast App without further notice.