EQuala Terms and Conditions of Use


Last Updates: November 07, 2012

This document governs your use of this Website, (referred to herein as the “Website” or the “Site”), and the EQuala software (the “EQuala Software Application,” and together with the Website, the “EQuala Service”). The EQuala Service is operated by, or on behalf of, ListnPlay Ltd (d/b/a and referred to herein as “EQuala”), and its affiliates. EQuala’s affiliates are companies controlled or owned by it, or companies that control it, or are under common control with it. The EQuala Service is a Digital Millennium Copyright Act compliant radio service that provides users with pre-programmed playlists culled from a pool of songs that to a certain extent, factors in a user’s musical tastes, and the musical tastes of the user’s friends.

Please read these Terms and Conditions of Use (“Terms and Conditions”) carefully. These Terms and Conditions, including all documents referenced herein, constitute a legally binding agreement between you and EQuala. These Terms and Conditions represent the entire understanding between you and EQuala regarding your use of the EQuala Service and supersede any prior statements or representations. The EQuala Privacy Policy is incorporated into these Terms and Conditions by reference and is made a part hereof. http://www.EQuala.fm/privacy. You must read and agree to these Terms and Conditions and the EQuala Privacy Policy before you use the EQuala Service.

Use of the EQuala Service

Access, distribution and/or use of the EQuala Service is subject to all applicable laws and regulations. All components of the Service may not be available in all geographic areas, and EQuala makes no representation that use of the Service is appropriate in all geographic areas. To the extent that access, distribution and/or use of this Website or the EQuala Software Application would be deemed illegal by applicable law, such access, distribution and/or use is prohibited. By visiting any area on the Website, downloading the EQuala Software Application and/or registering for any interactive functionality of the EQuala Service, you are deemed to have accepted these Terms and Conditions of Use and the EQuala Privacy Policy. If you do not agree to abide by these Terms and Conditions of Use and the EQuala Privacy Policy, please do not use the EQuala Service.

By visiting and participating in the activities offered on this Site, and/or downloading and/or using the EQuala Software Application, you affirm, represent and warrant that: (a) you are 18 years of age or older or are 13 years of age or older and have obtained your parent’s or guardian’s permission to access the Website and download and use the EQuala Software Application; (b) all information you submit via the EQuala Service shall be truthful and accurate, and you will maintain the accuracy of such information; (c) you agree to these Terms and Conditions and the EQuala Privacy Policy; (d) you do not reside in any country prohibited by law, treaty or administrative act from entering into trade relations with the United States or its citizens; and (e) your use of the EQuala Service shall not otherwise violate any applicable law, rule or regulation.

Terms of Membership

In order to use the EQuala Service you must create an EQuala account through Facebook. An EQuala account offers advertisement supported, no-cost access to the EQuala Service, and allows users to stream music for up to forty (40) hours a month. When you sign up for an EQuala account, EQuala will collect some Personal Information that you voluntarily provide, which includes (but may not be limited to), your name, address, telephone number, and email address.

EQuala reserves the right to change its Membership structure at any time and in its sole discretion, including, but not limited to, charging a Membership fee and/or creating different tiers of accounts allowing different access privileges. Any such change in offerings will be communicated to you 14 days in advance of the change becoming effective. If you do not agree to the changed Terms and Conditions, you can opt to terminate your account at that time.

Use of Materials

Material on this Website and accessed via the EQuala Software Application, including but not limited to sound recordings, images, logos and trademarks (collectively referred to as the "Material"), is protected under various intellectual property laws and owned or controlled by EQuala, or used with permission of the owner(s) of such Material.

EQuala hereby grants you a limited, non-exclusive, non-transferable, revocable license to use the Website and the EQuala Software Application as set forth in these Terms and Conditions, provided that:

In order to use the EQuala Service and before you download the EQuala Software Application, you must create an EQuala account. When creating an account, you must provide accurate and complete information and you may not use a fake identity or any other individual’s identity.

Except as otherwise indicated by EQuala, copying, reproduction, uploading, downloading, transmitting or any other use of this Website or of any of the Material, in whole or part, without the express permission of EQuala, is prohibited. You may, however, copy, reproduce, download, transmit and/or print individual pages contained on this Website for your personal, non-commercial use, provided you agree not to conceal, remove or alter any trademark, copyright or other notice contained on: (i) this Website; (ii) any of the Material; or (iii) any such individual pages so copied, reproduced, downloaded, transmitted or printed. You may download digital files where expressly permitted. Any unauthorized use of this Website, the EQuala Software Application and/or the Materials may subject the user to criminal prosecution and/or civil liability under applicable law.

Privacy

Please see EQuala’s Privacy Policy http://www.EQuala.fm/privacy for information concerning the collection and use of Personal Information from the EQuala Service. By accepting these Terms and Conditions, you also expressly consent to EQuala’s collection, storage and use of certain private information about you in accordance with the terms of the EQuala Privacy Policy.

Promotions, Sweepstakes and Contests

On occasion, EQuala or certain advertisers or suppliers may elect to conduct certain promotions, sweepstakes or contests (collectively, “Promotions”) via the EQuala Service. Each such Promotion may have specific rules and regulations, which will be made available to users and which shall be deemed incorporated in and become a part of these Terms and Conditions. The rules and regulations of each such Promotion may contain terms and conditions of use which are in addition to or different to those contained in these Terms and Conditions, and the specific terms and conditions of use for each such Promotion will govern with respect to your participation in such Promotion.

Links and Advertising

EQuala and its third-party partners may offer you goods, services and other information via the EQuala Service. From time to time, the EQuala Service may contain links to other websites that are not controlled and/or maintained by EQuala. Access to and use of such other websites is at your own risk and subject to any terms and conditions of use which govern such websites. By providing such links, EQuala shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information and/or products found on such websites. EQuala is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites or for any damages that may result therefrom. Copyrights in the materials or information on the linked websites are owned by other organizations. Moreover, such other websites may have privacy policies or terms and conditions of use that differ from those of the EQuala and/or may provide their users with less security than the EQuala Service.

Term

These Terms and Conditions shall remain in full force and effect while you are an EQuala Member or user of the EQuala Service. EQuala may terminate your Membership and/or your right to access and/or use the EQuala Service at any time in its sole discretion. You may cancel your EQuala Membership at any time.

Password Responsibility

When you register for an EQuala account, you may be asked to choose a password which may be required when you are seeking to participate in certain offerings of the EQuala Service. You are responsible for maintaining the confidentiality of your password. You agree not to use the account, username or password of any other EQuala Member at any time or to disclose your password to any third party. You agree to notify EQuala immediately if you suspect any unauthorized access to or use of your Member account or password. You are solely responsible for any and all use of your Member account and password.

Non-Commercial Use

The EQuala Service is for your personal use only and may not be used for any commercial purpose. Members may not authorize others to use their accounts. Further, you may not use the EQuala Service or any Materials provided by the Website or EQuala Software Application in connection with any commercial endeavors except those that are specifically endorsed or approved in writing by EQuala’s management.

Social Networking Features

The EQuala Service allows users to connect with other members of the EQuala community by sharing their EQuala profile, sharing songs and stations, and communicating via public message boards. Members can search for other members using their Facebook user name, and can also search for other Members based on their musical preferences and EQuala popularity (determined by the number of other EQuala members that are following them). Members can also interact with other Members by electing to follow their EQuala activity.

EQuala works by connecting with your Facebook account. You may also link your EQuala account with other social networking sites, including, but not limited to, Twitter. Your EQuala profile will be viewable by other EQuala members, including your Facebook user name and profile photo, EQuala user name, music activity, music preferences, and a list of EQuala members you are following and who are following you. Members can share songs and stations with friends across social media platforms by using EQuala’s “Shout” feature.

You acknowledge and agree that you are solely responsible for any information or comments that you post, and agree to respect other EQuala users in your interactions with them. EQuala recommends that you do not share personally identifiable information, but if you do choose to share personal information with another EQuala member, such as your phone number or address, you do so at your own risk. EQuala cannot and will not be held responsible for any consequences from your choice to interact with other EQuala members in forums not within EQuala’s control.

Any private and public communications and comments made through the EQuala Service must, in the sole and exclusive opinion of EQuala: (i) conform to all applicable laws, (ii) be appropriate in the context of the general purposes of the EQuala Service; (ii) not be obscene, pornographic, patently offensive, hateful, abusive or promote racism or discrimination of any kind; (iii) not provide personal information, or solicit such information from any other user of the EQuala Service; (iv) not involve or result in the transmission of junk e-mail, unsolicited mass e-mailings, “spamming,” “spimming” or “phishing;” (v) not transmit or distribute any potentially harmful programs such as Trojan horses, worms, viruses, spyware or any malicious software or code; and (vi) not contain any material or images owned by any other person or entity unless you have obtained all necessary rights, licenses and permissions needed to post the material and have it used as contemplated by these Terms and Conditions.

EQuala reserves the right to terminate your membership at any time if in its sole discretion you fail to abide by these rules.

Copyright Infringement Policy

EQuala values intellectual property and respects the intellectual property rights of others, and will remove materials from the EQuala Service that infringe the copyrights of others. If you believe that your copyrighted material may have been infringed by material contained on the Website and/or the EQuala Software Application, then pursuant to Title 17, United States Code, § 512, you may notify EQuala's Designated Agent in writing as follows:

Name of Designated Agent: Copyright Administrator

Address: EQuala
Kiryat Sefer 10, Tel Aviv, Israel, 6527712
Electronic Mail Address: terms@equala.fm

In your notice, you must include the following:

Additional/Different Terms

Certain pages or sections of this Website may contain terms and conditions of use which are in addition to or different from these Terms and Conditions. In the event that there is a conflict between such additional or different terms and conditions of use and these Terms and Conditions, the additional or different terms and conditions of use will govern with respect to the specific pages or sections to which they apply.

Limitation of Liability and Use Disclaimer

EQuala endeavors to make sure that all information and data it originates on the Website and via the EQuala Software Application is accurate. However, EQuala is not responsible for any damages or loss related to the use of the EQuala Service.

THIS WEBSITE AND THE EQUALA SOFTWARE APPLICATION, ALL MATERIAL CONTAINED ON THIS WEBSITE AND ON THE EQUALA SOFTWARE APPLICATION, AND ALL LINKS OR OTHER ITEMS RELATED TO ANY OF THE ABOVE ARE TRANSMITTED AND DISTRIBUTED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITE AND/OR THE EQUALA SOFTWARE APPLICATION, INCLUDING ANY OF EACH OF THEIR FEATURES AND FUNCTIONS, WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED. THERE ARE NO WARRANTIES REGARDING TITLE, SECURITY, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITE, THE EQUALA SOFTWARE APPLICATION, OR THE MATERIALS CONTAINED ON ANY OF THE ABOVE. ANY INFORMATION CONTAINED WITHIN OR PROVIDED THROUGH THIS WEBSITE AND/OR THE EQUALA SOFTWARE APPLICATION IS SUBJECT TO AMENDMENT, REVISION OR UPDATING. EQUALA RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE PAGES OF THIS WEBSITE AND/OR THE EQUALA SOFTWARE APPLICATION WITHOUT NOTICE AT ANY TIME AND ACCEPTS NO RESPONSIBILITY FOR THE EQUALA SERVICE NOT BEING AVAILABLE AT ALL TIMES. EQUALA SHALL NOT BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT AND/OR SPECIAL DAMAGES, THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THE EQUALA SERVICE OR FROM ANY MATERIALS CONTAINED THEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE. EQUALA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT ON OR ACCESSED THROUGH THE WEBSITE AND/OR THE EQUALA SOFTWARE APPLICATION, OR ABOUT THE CONTENT OF ANY SITES LINKED TO THE WEBSITE OR THE EQUALA SOFTWARE APPLICATION, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO AND/OR USE OF THE EQUALA SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF EQUALA’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE AND/OR THE EQUALA SOFTWARE APPLICATION, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE SITE, THE EQUALA SOFTWARE APPLICATION AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITE AND/OR THE EQUALA SOFTWARE APPLICATION.

EQuala is not responsible for any damages or loss related to your reliance on any outdated version of these Terms and Conditions, including, but not limited, to any outdated version of the EQuala Privacy Policy.

In no event shall EQuala’s liability to you exceed the greater of One Dollar (US $1.00) or the total amount paid by you for the relevant EQuala services at issue.

Certain jurisdictions prohibit the limitation of liability for certain types of damages or prohibit waivers against future fraud, and accordingly, such limitations or waivers may not apply to you. In such jurisdictions, EQuala’s liability is limited to the greatest extent allowable under applicable law.

Your Responsibilities

You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a back-up of all data and/or equipment.

From time to time EQuala may post updates to the EQuala Software Application. You are responsible for downloading such updates, and ensuring that you have the most recent version of the EQuala Software Application on your accessing device.

Indemnity

You will indemnify EQuala, and its parent, subsidiary and affiliated entities, furnishing entities, officers, directors, members, employees, representatives, licensees, licensors, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms and Conditions; (ii) your use of the EQuala Service, the Website and/or the EQuala Software Application; and/or (ii) any violation of these Terms and Conditions. You agree that your representations and warranties, and your obligation to indemnify EQuala, shall survive beyond any term that these Terms and Conditions are in effect.

Electronic Communications

When you communicate with EQuala electronically, via email or otherwise, you consent to receive electronic communications from EQuala. You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by EQuala satisfy any legal requirement that such communication be in writing. EQuala encourages you to retain your own copies of relevant information; however, upon your written request, EQuala will provide you with a copy of the information you provided to EQuala when creating your Member account. To make such a request please contact terns@equala.com.

With respect to all communications you make to or through the EQuala Service, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and EQuala shall have no obligation to protect your communications from disclosure; (ii) EQuala shall be free to reproduce, use, publish, display, disclose and distribute your communications to others without limitation, in any way now known or hereafter devised; and (iii) EQuala shall be free to use any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information, without any compensation to you.

Changes in Policy

EQuala reserves the right to make changes to these Terms and Conditions from time to time, in its sole discretion. We will post changes to the Terms and Conditions on this Website. Please review these Terms and Conditions often so that you will remain abreast of our current policies. You are responsible for making sure you are aware of the provisions of EQuala’s most current Terms and Conditions. Your continued use of the EQuala Service after any such updates are posted constitutes your acceptance of such changes. Effective Date: November 7th, 2012
These Terms and Conditions were last updated on November 7th, 2012

Acquisition of Business

In the event that EQuala is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, you hereby acknowledge and agree that all data collected on this Website and through the EQuala Software Application, and all of EQuala’s rights and remedies hereunder may be included in the assets of, and/or transferred pursuant to, such transaction. If that occurs, EQuala will post a notice to such effect on this Website.

Contact Us

If you have any questions concerning the EQuala Service or any of the policies set forth in these Terms and Conditions, please contact us at:

EQuala
Kiryat Sefer 10, Tel Aviv, Israel, 6527712
terms@equala.fm

U.S. Export Controls

Software from or related to this Website (the "Software") may be subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

Governing Law

Use of the EQuala Service and these Terms and Conditions shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions. In the event that any portion of these Terms and Conditions are deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, including but not limited to the scope, duration or area of its applicability, unless narrowed by construction, such provision shall for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited or unenforceable (or if such language cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify, to the extent necessary to make such provision or provisions enforceable in such jurisdiction, such scope, duration or area or all of them, and such provision shall then be applicable in such modified form in such jurisdiction). If, notwithstanding the foregoing, any such provision would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such provision, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions. No narrowed construction, modification or invalidation of any provision shall affect the construction, validity or enforceability of such provision in any other jurisdiction. No waiver by EQuala of any term or condition of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and EQuala’s failure to assert any right or demand compliance with any provision of these Terms and Conditions shall not be deemed to constitute a waiver of any such right or provision.

Any dispute concerning your use of the EQuala Service shall be submitted to binding arbitration in New York within one (1) year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association. To the fullest extent permitted by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.

Notwithstanding anything to the contrary set forth in these Terms and Conditions, EQuala may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York or in any other court of competent jurisdiction, in the event that EQuala believes that there is a violation, or a threatened violation, of any of EQuala’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.