PLEASE READ THIS TERMS OF SERVICE CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE, INCLUDING MUSIC CONTENT AND OTHER SERVICES WE MAKE AVAILABLE THROUGH THE SERVICE.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE SERVICE AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).
If You Want to Use the Service,
then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
Linkable Table of Contents
It is important that you read and understand these entire Terms before using the Service. To ease review, each section below includes a brief introductory summary and a link to the full explanation. Please note that the complete provisions, and not the headings or summaries shall govern. You can click on the headings and “More” buttons to be taken to the full explanation. Any capitalized terms have the meanings given to them where defined in the Terms.
You may have the opportunity to open, revise and close your accounts, subject to certain rules. We may offer you the ability to make choices regarding how and to whom some aspects of your account are used and seen, but these may not be completely effective.
2. Content, Ownership, Limited License and Rights of Others
We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations. Music Content (defined below) is subject to different terms as noted in this Section. More
3. Service and Content Use Restrictions
Your use of our Service is subject to various restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part. More
4. Content You Submit and Community Usage Rules
You grant us a broad license, which we may sublicense, to the content you submit which you represent you have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. Use of our Service is subject to community usage rules and we have the right to manage our Service to keep its content appropriate. More
5. Procedure For Alleging Copyright Infringement
Users may not post content they do not own or control, and may be suspended or terminated if they do so. Copyright owners may give us notice of infringement by following specific instructions specifically addressed in this Section. More
6. Procedure For Alleging Infringement of Other Intellectual Property
You can also give notice of trademark and other infringements that you think occur on the Service. More
7. Notices and Questions
You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page of the Service, changing the date at the beginning of these Terms or by other reasonable means that we may elect, such as to the email address you provided. More
8. Links by You to the Service
You may link to our Service, subject to some basic rules. More
9. Linked-To Websites; Dealings with Third Parties
We are not responsible for third parties or their content, apps, sites, products and/or services. We may make third-party content or services available to you on or via our Service, which we do not control. Use caution when dealing with third parties. More
10. Dispute Resolution
You agree to arbitrate most disputes and waive jury trial and class actions and to bring many types of claims within one (1) year. More
11. Disclaimer of Representations and Warranties
We disclaim warranties to the extent permitted by applicable law, and provide the Service “As Is”. More
12. Limitations of our Liability
Our liability is greatly limited. More
13. Updates to Terms
These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof. More
14. General Provisions
You agree to various other terms and conditions, which you should read here, including regarding (a) our control and discretion; (b) your indemnity of us; (c) accessing the Service from outside of the United States; (d) enforcement and interpretation of these Terms; (e) communications with us; (f) investigations, cooperation with law enforcement, termination and survival; (g) limit on assignment and delegation of rights and obligations; (h) how waivers may be made; and (i) your responsibility for your connectivity and access. More
15. Terms Applicable For Apple Device Users
There are some other things you should know if you are accessing or using our App through an Apple Device. More
Full Details of the Terms of Service
1. Account Types and Account Details
A. Musician Accounts. A Musician is someone who creates a membership page on the Service to engage with Fans who have received an invitation from the musician or We Are Giant to support the Musician’s music. To become a Musician, use our artist portal available as part of the Service. When you join the Service, you become part of the We Are Giant community. Memberships are for your most passionate Fans. On the Service, you can provide your Fans something exciting that gives them unique benefits they want, like additional access to music, exclusivity, and engaging experiences. In turn, Musicians will receive loyal support from your Fans. As a Musician, you make your membership available on the Service, and we provide membership to your Fans on an invitation only basis. If your Fans include people under the age of eighteen (18), then please remind them that they need permission from his or her parent or legal guardian to join your membership, and those under the age of thirteen (13) cannot use the Service. We are not required to allow any particular person or group of persons to be your Fan.
B. Fan Accounts. A Fan is someone who subscribes via invitation from the musician or We Are Giant to support their favorite Musician(s). Through subscription on the Service, Fans directly interact with Musicians they support, using tools supplied by the Service, and through our Service have the opportunity to engage with a greater community of Musicians and Fans. As a Fan, you’re joining the Service to be part of an exciting movement to support a Musician’s subscription while you my gain access to special benefits, which may include access to your Musician, exclusivity, and engaging experiences with the Musician and Service community.
D. Profiles. Your account may allow you to post a public profile (a “Profile Page”). Profile Pages may not include any form of prohibited User-Generated Content, as outlined below. We may offer you the ability to set preferences relating to your profile or Service activities, but settings may not become effective immediately or be error free, and options may change from time-to-time. We assume no responsibility or liability for users’ Profile Page material. Profile Pages may only be set up by an authorized representative of the individual that is the subject of the Profile Page. We do not review Profile Pages to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profile Pages that may appear on the Service. If there is any dispute as to whether a Profile Page has been created or is being maintained by an authorized representative of the individual who is the subject of that Profile Page, then we shall have the sole right, but are not obligated, to resolve such dispute as we determine is appropriate in our sole discretion. Such resolution may include, without limitation, deleting or disabling access to Profile Pages, or any portion thereof, at any time without notice.
2. Content, Ownership, Limited License and Rights of Others
A. Content. The Service contains a variety of: (i) materials and other items relating to We Are Giant, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of We Are Giant (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing but excluding Music Content (defined below), collectively, “Content”).
B. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by We Are Giant, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of We Are Giant or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. We Are Giant owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License to Content. Subject to your strict compliance with these Terms and any Additional Terms, excluding Music Content (defined below), We Are Giant grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in We Are Giant’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights to Music Content.
(i) The Service contains interactive tools (the “Platform”) that enables Musicians to make available to Fans and other users of the Service (collectively, “Licensees”) for certain sound recordings, live performances and other music owned or controlled by the Musician. Any musical content distributed by a Musician on the Service shall be collectively referred to hereunder as the “Music Content”.
(ii) Notwithstanding anything to the contrary contained herein, where applicable, one (1) or more separate agreement(s) between Musicians, on the one hand, and Licensees, on the other hand (each, an “Outside Agreement”), shall control the licensing of any Music Content licensed by Musicians to Licensees on the Service. For the avoidance of doubt, We Are Giant does not grant any licenses or other rights to any users of the Service with respect to Music Content other than as specifically set forth hereunder, and any and all further rights shall be governed by the terms of Outside Agreement(s), if any.
(iii) Rights Granted to We Are Giant by Musicians.
(a) For good and valuable consideration, Musicians grant to We Are Giant a license, for so long as Musicians choose to host the applicable Music Content (subject to the terms of any Outside Agreement[s]), to:
(1) host, reproduce, distribute, make available for download and/or perform (publicly or otherwise) all Music Content on the Platform;
(2) grant to Licensees, subject to the terms of any Outside Agreement, the non-exclusive right, privilege and license to download and list the Music Content solely for non-commercial, personal use;
(3) broadcast, stream and/or perform (publicly or otherwise) the Music Content in any and all media in connection with the advertisement and promotion of the Music Content and/or the Platform;
(4) use, publish and display Musician’s name, image, logo, likeness and biographical materials in any and all media in connection with the advertisement and promotion of the Music Content and/or the Platform; and
(5) license any of the rights granted to We Are Giant hereunder to third parties as reasonably necessary to perform its obligations hereunder or to otherwise effectuate the purpose of these Terms.
(b) The rights granted pursuant to this Section 1(D) with respect to Music Content shall be non-exclusive to We Are Giant, subject to the terms of any Outside Agreement(s). For the avoidance of doubt, it is hereby acknowledged and agreed that the terms of any Outside Agreement(s) may continue for a duration longer than the rights granted to We Are Giant hereunder.
(iv) Warranties and Representations. Musician hereby represents and warrants: (1) there are and there shall be no liens, encumbrances or other charges against the Music Content, including, without limitation, any samples incorporated therein by Musician and/or any third party engaged by Musician; (2) no selections, materials, ideas, or other properties furnished by Musician and embodied or contained in the Music Content, nor the exercise by We Are Giant of any of its rights hereunder, will violate or infringe upon any law or statutory right of any third party; (3) Musician has the full right, power and authority to agree to these Terms, grant the rights conveyed to We Are Giant hereunder, and perform Musician’s material terms and obligations hereunder; and (4) Musician has not entered into and shall not enter into to any agreement with any third-party record company, distributor, music publisher, or any other person or entity that would conflict, inhibit, restrict or impair the rights granted to We Are Giant hereunder or the performance of Musician’s obligations under these Terms.
(v) Musician hereby forever releases and covenants not to sue We Are Giant and/or any of the We Are Giant Parties (defined below) from any and all claims arising out of or in connection with any act or omission of any third party in connection with any Music Content, including, without limitation, any unauthorized commercial exploitation thereof.
(vi) YOU UNDERSTAND AND AGREE THAT WE ARE GIANT IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN MUSICIANS AND ANY LICENSEE. YOU ACKNOWLEDGE THAT UNLESS EXPRESSLY SET FORTH ON THE SERVICE AS PART OF A SUBSCRIPTION OFFERING, WE ARE GIANT DOES NOT LICENSE MUSIC CONTENT DIRECTLY OR FUNCTION AS MUSIC LICENSING COMPANY. THE SERVICE MAY BE USED BY MUSICIANS TO MAKE MUSIC CONTENT AVAILABLE TO LICENSEES, BUT YOU AGREE THAT WE ARE GIANT HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY MUSIC CONTENT LICENSED THROUGH THE USE OF THE SERVICE, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. WE ARE GIANT HAS NO CONTROL OVER THE CONDUCT OF MUSICIANS, LICENSEES, AND OTHER USERS OF THE SITE AND SERVICE OR ANY MUSIC CONTENT, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE ARE GIANT SHALL NOT HAVE ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO ANY TRANSACTIONS OR RELATIONSHIP BETWEEN MUSICIANS AND LICENSEES.
E. Rights of Others. When using the Service, you must respect the intellectual property and other rights of We Are Giant and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 5 below.
3. Service and Content Use Restrictions
A. Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to We Are Giant; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, We Are Giant, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; (ix): (a) use false or deceptive identities, names or accounts; (b) deploy or otherwise use bots, malware, viruses or scrapers; (c) make it appear as though any aspect of your account, User-Generated Content, or Music Content, including, without limitation, your plays, likes, messages, reposts, etc., are more successful than they actually were through unauthentic interactions by you or third parties you engage, manage or transact with (e.g., click-fraud, manipulating social media followings, etc.); (d) engage in any activities that are designed to defraud or game We Are Giant or third parties; or (e) deploy, or permit any third party to deploy, any technology on, or in connection with, We Are Giant or We Are Giant branded sites, systems or services that can enable the tracking of site or service activities or users, except with We Are Giant prior express written approval; or (x) otherwise violate these Terms or any Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of We Are Giant or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content. We Are Giant may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in We Are Giant’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by We Are Giant and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
4. Content You Submit and Community Usage Rules
A. User-Generated Content.
(i) General. We Are Giant may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein but expressly excluding Music Content (collectively, “User-Generated Content”). We Are Giant may allow you to do this through forums, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
(iii) License to We Are Giant of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms, you grant to We Are Giant the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to We Are Giant to your User-Generated Content, you also hereby grant to We Are Giant, and agree to grant to We Are Giant, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4(A)(iii).
(iv) Exclusive Right to Manage Our Service. We Are Giant may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and We Are Giant may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 4(B) ). Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant We Are Giant the rights to it that you are granting by these Terms and any Additional Terms, all without any We Are Giant obligation to obtain consent of any third party and without creating any obligation or liability of We Are Giant; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to We Are Giant’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. We Are Giant has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at We Are Giant’s cost and expense, to which you hereby consent and irrevocably appoint We Are Giant as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of visitors of the Service’s online forums and work spaces (“Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
• Your User-Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to We Are Giant (for example, if someone has taken a picture of you and your friend, and you submit that photo to We Are Giant as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.).
• Maintain Appropriate Rights in Your User-Generated Content. With respect to all User-Generated Content that you submit to us, you represent and warrant that the material is either fully original to you or that you have all the necessary rights, licenses, permissions, clearances and consents needed from third parties in order for you to submit your User-Generated Content (including, but not limited to, all copyright and right of publicity and privacy rights) for you to comply with the terms of this Agreement. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties (other than We Are Giant). Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet or other source. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or provides services in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to We Are Giant. (For example, if someone has taken a video of you and your friend, and you submit that video to We Are Giant as your User-Generated Content, then you must obtain your friend’s and the videographer’s permission to do so.) We may require, at any time, proof of the permissions referred to above in a written form acceptable to us. Failure to provide such proof may lead to, among other things, such User-Generated Content being rejected from posting on the Service.
• Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
• Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions about job search-related issues with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don’t Share Other Peoples’ Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by We Are Giant.
• Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
If you submit User-Generated Content that We Are Giant reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
C. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us using the reporting functionality on each content item. For alleged infringements of intellectual property rights, see Sections 5 and 7 , below.
5. Procedure For Alleging Copyright Infringement
A. DMCA Notice. We Are Giant will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have 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;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
We Are Giant will only respond to DMCA Notices that it receives by mail, email or facsimile at the addresses below:
By Mail: Giant Music HoldCo LLC, 700 N San Vicente Blvd 7th Floor, Los Angeles, CA 90069
(Attn: DMCA Agent).
By email: DMCA@wearegiant.com
It is often difficult to determine if your copyright has been infringed. We Are Giant may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and We Are Giant may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting We Are Giant’s other rights, We Are Giant may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by We Are Giant.
B. Counter-Notification. If access on the Service to a work that you submitted to We Are Giant is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us an email to email@example.com that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(d) your full name, address, telephone number and email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to We Are Giant with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Notices and Questions
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us at firstname.lastname@example.org. You acknowledge that the provision of customer support is at We Are Giant’s sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Links by You to the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with We Are Giant or cause any other confusion, and (c) the links and the content on your website do not portray We Are Giant or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to We Are Giant. We Are Giant reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
9. Linked-To Websites; Dealings with Third Parties
A. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services) are solely between you and the third party (including issues related to the content of third-party advertisements, delivery of goods, warranties (including product warranties), privacy and data security, and the like). We Are Giant disclaims all liability in connection therewith.
10. Dispute Resolution
Certain portions of this Section 10 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and We Are Giant agree that we intend that this Section 10 satisfies the “writing” requirement of the Federal Arbitration Act.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, a “Dispute”), or to any of We Are Giant’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 10(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent via email to email@example.com. For a period of sixty (60) days from the date of receipt of notice from the other party, We Are Giant and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or We Are Giant to resolve the Dispute or Excluded Dispute on terms with respect to which you and We Are Giant, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND WE ARE GIANT (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT—INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between We Are Giant and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. We Are Giant and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 10(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and We Are Giant regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of We Are Giant consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Austin, Texas. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require We Are Giant to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then We Are Giant will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 10(A); (b) filing for arbitration as set forth in Section 10(B); or (c) filing an action in state, Federal or provincial court.
D. Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by We Are Giant to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or We Are Giant’s intellectual property rights (including such We Are Giant may claim that may be in dispute), We Are Giant’s operations, and/or We Are Giant’s products or services.
E. No Class Action Matters. YOU AND WE ARE GIANT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Los Angeles County, California. Accordingly, you and We Are Giant consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
H. Governing Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of California, without regard to its conflicts of law provisions.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, We Are Giant, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “We Are Giant Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content, Music Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, developer code or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User-Generated Content transmitted to We Are Giant via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to, or errors on, the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A WE ARE GIANT PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE WE ARE GIANT PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY WE ARE GIANT PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(a) the Service (including the Content, Music Content and the User-Generated Content;
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by We Are Giant Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any injury or damages you sustain directly or indirectly as a result of your use of the Service or any Music Content;
(f) any errors or omissions in the Service’s technical operation; or
(g) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if We Are Giant Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE ARE GIANT PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID WE ARE GIANT TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
13. Updates to Terms
14. General Provisions
A. We Are Giant’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grant We Are Giant a right of consent or approval, or permits We Are Giant to exercise a right in its “sole discretion,” We Are Giant may exercise that right in its sole and absolute discretion. No opt-in consent or approval may be deemed to have been granted by We Are Giant without being in writing and signed by an officer of We Are Giant.
B. Indemnity. You agree to, and you hereby, defend, indemnify, and hold We Are Giant Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any We Are Giant Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) We Are Giant Parties’ use of the information or content that you submit to us (including your User-Generated Content and Music Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by We Are Giant Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, We Are Giant Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We Are Giant Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a We Are Giant Party.
C. Operation of Service; Availability of Products and Services; International Issues. The Service is operated in the United States, and is primarily intended for users located in the U.S. We Are Giant makes no representation that the Service is appropriate or available for use beyond the U.S. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
D. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
E. Communications. As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. 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.
F. Investigations; Cooperation with Law Enforcement; Termination; Survival. We Are Giant reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by We Are Giant in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to We Are Giant under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from We Are Giant, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to We Are Giant in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
G. Assignment. We Are Giant may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of We Are Giant.
H. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or We Are Giant in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict We Are Giant’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
I. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
15. Terms Applicable For Apple Device Users
If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and We Are Giant and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that We Are Giant, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and We Are Giant, We Are Giant and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.