THIS AGREEMENT
This Terms of Service Agreement ("Agreement") governs your access and use of the VoloMedia Corporation ("VoloMedia") service for downloadable media (the "Service") and the VoloMedia software plug-in (the "Software"), as well as any future fixes, updates, or enhancements to the Service or Software. By using or accessing the Service or downloading and installing the "Software", you agree that you have read, understood, and accept this Agreement. Please read it very carefully and let us know if you have any questions. If you do not agree with any of the terms herein, you may not use the Service or Software.
DESCRIPTION OF SERVICE
The Service facilitates interactions between publishers of downloadable media and end-users by enabling publishers to distribute their content more easily and enabling end-users, through the Software, to download and access that content for listening or viewing on portable media devices or computers. VoloMedia currently offers the Service and Software for free to end-users.
USE OF THE SERVICE
You may only use the Service and Software for their intended purpose and solely in accordance with this Agreement. The Service and Software are made available to you for your personal use only. You must be at least thirteen (13) years of age to use them. You may only access the Service using the Software. The Service and the resources accessible through it may contain advertisements, links to other Internet sites and third-party resources. You agree that VoloMedia is not responsible for either the content of such resources or their availability or use. As part of your use of the Service, you may provide registration information to VoloMedia. You warrant that all such registration information is accurate and truthful, and you agree to update such information as necessary. VoloMedia reserves the right to refuse service to anyone at any time without notice for any reason.
USE RESTRICTIONS
You agree that you will use the Service and Software in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (i) use the Service or Software to 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 VoloMedia; (ii) transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (iii) prevent others from using the Service or Software; or (iv) use the Service or Software for any fraudulent or unlawful purpose. 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. VoloMedia reserves the right, but shall have no obligation, to investigate your use of the Service or Software in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
CONTENT
VoloMedia takes no responsibility for any content accessible through the Service, nor does VoloMedia have any obligation to monitor such third party content. VoloMedia reserves the right at all times to remove or refuse to distribute any content on the Service, such as content that violates the terms of this Agreement. VoloMedia 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 VoloMedia, its users and the public. VoloMedia may alter the structure of hyperlinks submitted in connection with use of the Service provided that the destination page of the hyperlink that is shown when accessing the hyperlink remains the same.
DEALINGS WITH THIRD PARTIES
You understand and agree that your correspondence or business dealings with advertisers or other third-parties found through the Software or Service, including any payments or delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertisers or other third-parties. You agree that VoloMedia will not be responsible for liable for any loss or damage of any sort incurred as the result of such dealings. You also understand and agree that you are responsible for obtaining access to the Service and that access may involve third-party fees (such as Internet service provider or airtime charges) or the need for computer equipment and/or software. You are responsible for paying all applicable fees and taxes you may incur in connection with your use of the Software and Service, including those associated with the delivery or display of advertisements.
INTELLECTUAL PROPERTY
VoloMedia shall own and retain all rights, title and interest in and to the Service, including all software and data related thereto. You acknowledge that the software and data related to the Service (including, without limitation, any usage data or derivative works thereof) are copyrighted by VoloMedia and may contain trade secrets or other intellectual property owned by VoloMedia. You agree that you will not copy, alter, modify, or create derivative works of the Service or otherwise use the Service in any way that violates the use restrictions contained in this Agreement. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service or to interfere with the operation of the Software or Service. Moreover, you may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Software. VoloMedia does not grant you any licenses, express or implied, to the intellectual property of VoloMedia or its licensors except as expressly stated in this Agreement.
PRIVACY
As a condition to using the Service, you agree to the terms of the VoloMedia Privacy Policy, located at privacy as it may be updated from time to time. In connection with your use of the Service, you agree and understand that VoloMedia may direct advertising content to you. This process is entirely automated and will not result in the disclosure of any of your personal information to the advertisers or other third parties without your consent. In addition, VoloMedia may collect usage data and other statistics resulting from your use of the Services. Such data will be used internally by VoloMedia, and may be provided to third parties only in aggregate or anonymous form.
REPRESENTATIONS AND WARRANTIES
THE SERVICE IS PROVIDED "AS IS" AND VoloMedia MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND NON-INTERFERENCE. VoloMedia assumes no responsibility for the timeliness, deletion, or mis-delivery of downloaded media content, or for the failure to store any personalization settings. VoloMedia makes no warranty that (a) the Service or Software will meet your requirements; (b) the Service will be uninterrupted, timely, secure, or error free; (c) the results that may be obtained from the use of the Software or Service will be accurate or reliable; (d) the quality of any products, services, information or other material purchased or obtained by you through the Software or Service will meet your expectations; or (e) any errors in the Software will be corrected. You represent and warrant that (a) all of the information provided by you to VoloMedia to use the Service is correct and current; and (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL VoloMedia BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR LOST PROFITS, OR ANY CLAIM MADE BY A THIRD PARTY OR MADE BY YOU FOR A THIRD PARTY, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICE OR THE CONTENT CONTAINED THEREIN, EVEN IF VoloMedia KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER DAMAGES ARE SOUGHT AS A TORT CLAIM (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), A CONTRACT CLAIM, OR ANY OTHER CLAIM AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES OR COUNTRIES, SOME EXCLUSIONS OR LIMITATIONS CONTAINED HEREIN MAY NOT APPLY TO YOU. IN ADDITION TO THE FOREGOING, IN NO EVENT SHALL VoloMedia'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $100. You agree to hold harmless and indemnify VoloMedia and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
MODIFICATIONS
This Agreement may be modified by VoloMedia at any time by updating and posting a new version on VoloMedia's website. VoloMedia may also provide notice of modifications to you through a broadcast or email message. Through your subsequent use of the Service or Software, you agree to be bound by the terms and conditions of the version of this Agreement that is in force during such use.
TERM AND TERMINATION
This Agreement is effective as of the date of your first access or use of the Service, and shall remain in effect for the duration of your access or use. VoloMedia reserves the right to terminate your account and this Agreement at any time and for any reason. We will notify you in writing if we are in possession of your contact information. Likewise, you may terminate your account and this Agreement by notifying VoloMedia in writing.
GOVERNING LAW AND FORUMN
THIS AGREEMENT AND YOUR USE OF THE SITE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The state or federal courts sitting in Santa Clara County, California shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this agreement, and you hereby consent to the jurisdiction of such courts and covenant that you will not bring suit in any other jurisdiction.
MISCELLANY
This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys' fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import.
