Date of last revision: March 18, 2019
Please read the terms and conditions of this Agreement carefully before using our Platform. The Platform and all data, design, text, images, graphics, including all arrangements thereof, contained therein are proprietary, confidential, and are licensed to you under this Agreement, not sold to you. By accessing or otherwise using any portion of the Platform, you agree to be bound by the terms of this Agreement. If you are not willing to be bound by the terms of this Agreement, you may not access or otherwise use any portion of the Platform.
1. Ability to Use the Platform.
In order to accept this Agreement and to use the Platform, you must be a resident of an Authorized Jurisdiction (as defined in this Agreement) and be 13 years of age in the United States; or 16 years of in the European Union or European Economic Area with parental consent ("Minimum Age"). The Platform is not intended for users under the Minimum Age. You hereby affirmatively represent that (a) you are at least the Minimum Age; (b) you have the consent of your parent(s) to use the Platform if you reside in the United States and are at least 13 and under 18 years of age; (dc) you have all the applicable rights and authority to grant Vertigo the rights granted herein; and (ed) you have read, understood, and agree to be bound by this Agreement. If you are not at least the Minimum Age, do not have parental consent, or you do not agree to all the terms and conditions of this Agreement, you may not use the Platform.
3. Your User Account.
To access the Platform, you must create an account on Vertigo. You are required to complete a profile and submit certain personal information to us. We require an e-mail address, password, and a username, which may or may not be your real name. You must provide an e-mail address that is actually yours. Usernames are allocated on a first come, first serve basis. We reserve the right, in our sole discretion, to (a) refuse to issue a particular username or to (b) remove or reclaim any username, with or without notice to you. You cannot use a username that misappropriates the trademark, privacy, or other intellectual property rights of any third party (e.g., use the name of an artist, band, or individual) without express permission of such third party. We may refuse to issue a username or reclaim a username if we determine that such username impersonates someone else, misappropriates a person’s right of publicity, is illegal, or is offensive. Your username is how you will be publicly identified, along with any photo you associate with your account.
You are allowed to create one account per device for your personal use. Accounts that are created through fraudulent, misleading, or inauthentic means, whether by third-party apps or otherwise, can be disabled or deleted by Vertigo at any time, with or without notice to you. Repeated creation of multiple inauthentic accounts may result in disabling of your account and/or a permanent ban from accessing the Platform.
When you create an account with us, you represent to us that you are at least the Minimum Age and that the information you provide us is truthful, accurate, complete, current, and otherwise in compliance with this Agreement at all times. Submission of false, misleading, inaccurate, incomplete, obsolete, or other information prohibited under this Agreement may result in immediate termination of your account on the Platform.
You are responsible for maintaining the confidentiality of your account and password, including but not limited to, the restriction of access to your mobile device and your account. You agree to accept responsibility for any and all activities that occur under your account, including but not limited to, any activity that occurs as a result of your failure to keep secure and maintain the confidentiality of your account and password information. You must notify us immediately upon becoming aware of any
breach of security or unauthorized use of your account. It is your sole responsibility to control the dissemination and use of your password, control access to and use of your account, and notify us when you desire to disable your account on the Platform. You may not use anyone else’s password or account at any time on the Platform. We will not be responsible or liable for any loss or damage arising from your failure to comply with these requirements, and you may be held liable for any losses incurred by us or any other user of the Platform if your failure to keep your account information secure and confidential.
4. Compliance with Policies.
From time to time, we may, but are not obligated to, offer special promotions, sweepstakes, contests, and other promotional programs (collectively, "Promotions") that may be governed by separate eligibility requirements (pertaining to location, age, etc.), time limits, restrictions, terms, and conditions that will be made available to you. You agree that your participation in any Promotions will be subject to such other requirements, limits, restrictions, and conditions.
5. Changes in Terms and Conditions.
6. Your License to Use the Platform.
Restrictions. Except as otherwise specifically permitted in this Agreement, you shall not: (a) modify, download, intercept, or create any derivative works of the Platform, including any translations or localizations thereof; (b) access or use the Platform through an application or means not authorized by Vertigo; (c) copy, store, edit, change, exploit, download, prepare any derivative work of, or alter in any way any of the content made available through the Platform; (d) license, sell, rent, lease, encumber, transfer, assign, distribute, disclose, post, make available, permit time sharing or simultaneous use of, or otherwise exploit the Platform to or for the benefit of any third party; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, underlying ideas, or structure or organization of the Platform; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Platform; (g) publish or provide any results of any Platform, in whole or in part, aggregated or otherwise, to a third party without the prior written consent of Vertigo; (h) provide your username and password used to access the Platform to any third party for any purpose other than protection or encryption of account credentials; (i) use any systems or means, automated or otherwise, to access, acquire, copy, scrape, spider, harvest, or monitor any part of the Platform; (j) circumvent any technological measures employed by or on behalf of Vertigo to protect the Platform; (k) use any other technologies or initiate any other activities that may harm the Platform, or the interests or property of Vertigo or other users of the Platform; or (i) aid or encourage any third party to engage in any activity that would constitute a breach of this Agreement.
You agree that you will not use the Platform in any manner that could damage, disable, overburden or impair the Platform or interfere with any other party’s use and enjoyment of the Platform. You will not use the Platform to violate any applicable law, rule or regulation and you will not encourage or enable others to violate any applicable law, rule, or regulation. While using the Platform, you will not: inflict emotional distress on others, humiliate others, assault or threaten others, impersonate others or misrepresent your affiliation, stalk, harass or harm another individual, collect or store personal data about other users, spam or send unsolicited communications to others, or otherwise participate in activity that may result liability of any kind.
ANY USE OF THE PLATFORM NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
7. Authorized Jurisdictions.
Vertigo may make the Platform available in certain jurisdictions globally (each, an "Authorized Jurisdiction", and collectively, the "Authorized Jurisdictions"). The initial Authorized Jurisdiction is the United States of America. We may add or remove countries and/or territories from the list of Authorized Jurisdictions at any time and without any notice, liability, or obligation to you with respect to each such territory. Use of the Platform outside of the Authorized Jurisdictions is strictly prohibited, outside the scope of the license granted herein, and may subject your account to termination and other legal action.
8. Communication Preferences and Consent.
From time to time, we may send you communications through the various channels that you have provided to us (e.g. push notifications, in-app messages, e-mail address, telephone number, mailing address). These communications may include, but are not limited to, tips and recommendations, special offers, and other account-related or transactional messages.
If you would like to modify your ability to receive communication from our Platform, in some cases, you may control those settings within the settings or preferences. By accepting this Agreement and using the Platform, you expressly consent to the receipt of all such communications from or on behalf of Vertigo. You may not opt out of receiving account-related or transactional communications.
9. Content Selection and Functionality of the Service; Suspension and Termination of the Platform; Updates to the Platform.
Vertigo reserves the right to select, display, and perform content based on a number of different factors, including but not limited to licensing and contract restrictions and requirements, territorial limitations, industry trends, and availability. However, in order to provide the Platform, Vertigo must reserve the right to alter, change, modify, or terminate any services, content, or application functionality at any time, with or without notice to you. We may from time to time, in our sole discretion, develop and provide Platform updates, which may include upgrades; patches; corrections; or changes, additions, or removal of features or functionality. You agree that we have no obligation to provide any updates or to continue to provide or enable any particular features or functionality. For the App, based on your mobile device settings, when your device is connected to the Internet, the App may download and install all available updates or you may receive notice of or be prompted to download and install available updates.
10. Third-Party Content; Affiliates.
The Platform may present advertisements for or links to third-party applications, products, services, or websites ("Third-Party Content"). We are not responsible for the availability of Third-Party Content or the images, messages, or other materials contained therein. Neither Vertigo nor its affiliates will be liable for any errors, illegalities, inaccuracies, or omissions in any Third-Party Content and will not be responsible for any losses or damages of any sort incurred as a result of your participation with, use of, or reliance on the Third-Party Content, including any goods, products, or services offered by such Third-Party Content. You understand that the information and opinions of Third-Party Content represent solely the thoughts of the author; are not endorsed by Vertigo; and may not necessarily reflect our beliefs. All third-party advertisers, sponsors, or other parties are responsible for ensuring that material submitted for inclusion on our Platform is accurate and complies with applicable laws.
In addition, you may encounter Third-Party Content in the form of advertisements, endorsements, or opinions about Vertigo or our Platform by third-party reviewers, advertisers, influencers, ambassadors, or authors, whether compensated by Vertigo or not. Such Third-Party Content may be published in digital, print, or any other form, on the Platform or on any other websites, applications, or media not necessarily owned by or related to Vertigo. The views, thoughts, and opinions expressed in the Third-Party Content belong solely to the author and have not been independently verified or approved by Vertigo. We do not assume any liability for the content or accuracy of the information presented in any Third-Party Content. Nothing expressed in any Third-Party Content shall be construed to create any warranty of any kind, whether express or implied, with respect to the Platform not otherwise covered in this Agreement, including any implied warranties of title, merchantability, satisfactory quality, fitness for a particular purpose, or any warranties arising out of any law, custom, course of dealing, performance, or trade usage.
Notwithstanding the foregoing, Vertigo seeks to comply at all times with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. We require all influencers, ambassadors, marketers, or affiliates who receive compensation of any kind from Vertigo (collectively "Affiliates") to comply with all FTC rules and regulations related to advertising and marketing, including, but not limited to, FTC 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising ("FTC Endorsement Guides"). The FTC Endorsement Guides require, among other criteria, that material connections between advertisers and endorsers be disclosed and that all reviews, assessments, endorsements, and testimonials about Vertigo and its Platform must clearly and prominently disclose that the author is one of our Affiliates and received compensation from Vertigo. We educate Affiliates regarding sponsorship disclosures and regularly monitor what our Affiliates post about us; however, we are not liable for any vagueness, ambiguity, misrepresentation, omission, or failure by an Affiliate to make a clear and conspicuous disclosure about the relationship of an Affiliate with Vertigo. We reserve the right to terminate the relationship with or withhold payment from any non-compliant Affiliates. Finally, nothing in our agreement with Affiliates shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship. Our Affiliates have no authority to make or accept any offers or representations on behalf of Vertigo or to make any statements, representations, promises, or warranties of any kind, whether on our Platform or otherwise, that contradict anything contained in this Agreement.
11. Product Support; Feature Availability; Fraud and Abuse.
Vertigo is not obligated to provide technical support under the terms of this Agreement and provides no assurance that any specific errors or discrepancies in the Platform will be corrected. Vertigo may alter the availability of any feature of the Platform or impose new limitations on your use of the Platform at any time, with or without notice, liability, or obligation. In certain circumstances, we may require you to install an update in order to continue use of the Platform. In order to provide a high-quality experience to all of our users, we monitor the Platform to detect and prevent fraud and abuse. We may, in our sole discretion, terminate your account and your access to the Platform should we determine it is associated with fraudulent or abusive activities. Further, we reserve the right to pursue legal action in connection with fraudulent or abusive activities.
During your use of the Platform, we may permit you to store data, preferences, content, or other information for your convenience, but we are under no obligation to retain any such data, preferences, content, or other information that you may have stored and will not be liable for the deletion of any such information.
12. Mobile Services.
Use of the Platform may involve transmission of data through the networks of your mobile carrier or Internet service provider (ISP). You are responsible for all carrier, text/SMS, data, or other related fees or charges you incur from your carrier or ISP in connection with, or related to your use of the Platform. Vertigo assumes no liability or responsibility for the payment of any charges you may incur.
13. Third-Party Services.
Our Platform may display, include, or make available third-party content (or provide links to third-party sites or services) that are not owned or controlled by us. We have no control over and assume no responsibility for the content, privacy policies, or practices of any third-party site or services. We do not warrant the offerings of any of such third parties or their sites. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused
14. Intellectual Property.
You acknowledge that Vertigo retains all rights, title, and interest in and to all copyrights, trademarks, trade secrets, patents, and any other proprietary rights in the Platform. Vertigo, its visual identity elements, and certain other trademarks, service marks, graphics, and logos, are the registered trademarks or trademarks of Vertigo. The Platform may also contain third-party trademarks, service marks, graphics, and logos. The Platform is owned or licensed by Vertigo and is protected by the laws of the United States and other countries in which the Platform is made available. You agree to prevent any unauthorized copying, use, or distribution of the content available to you in the Platform. Except as expressly provided herein, Vertigo does not grant any express or implied right to you under any copyrights, trademarks, trade secrets, patents, or other proprietary rights owned by Vertigo.
15. Submissions and Feedback.
Vertigo seeks to cultivate an active user community that shares our passion for innovation, and our drive to constantly improve our Platform. While our employees continually strive to develop and evaluate our own ideas, we pride ourselves on paying close attention to the feedback, comments, and suggestions we receive from our listeners. By submitting any ideas, feedback, and/or proposals to Vertigo regarding the Platform ("Feedback"), you expressly acknowledge and agree that: (a) Vertigo is not under any obligation to you, including any obligation of payment of compensation or confidentiality, with respect to the Feedback; and (b) Vertigo may freely use, assign, transfer, distribute, exploit, and further develop and modify the Feedback for any purpose. To the extent any copyright or other intellectual property ownership interest vests in you with respect to the Feedback, you hereby grant Vertigo a worldwide, non-exclusive, royalty-free, fully paid up, irrevocable, sublicensable, and perpetual right and license to make, use, copy, sell, distribute, otherwise exploit, and create derivative works of the Feedback. Further, you irrevocably release Vertigo from any and all liability and claims that may result from or are related to the rights to the Feedback.
16. User-Generated Content (UGC); Harassment; and Cyberbullying.
You acknowledge and agree that Vertigo is a passive provider which allows users to select and upload their own content to the Platform. Such content is transmitted to other users without modification or approval by Vertigo. The transmission, routing, provision of connections, or storage of the content is carried out through a technical process and without Vertigo necessarily selecting the content.
Except as separately licensed or as authorized under an applicable statutory licensing scheme, if you elect to upload or provide written, photographic, or other audiovisual content to Vertigo in connection with your use of the Platform ("User-Generated Content"), you hereby grant Vertigo a non-exclusive, transferrable, sublicensable, perpetual, irrevocable, fully paid up, royalty-free, worldwide right and license (but not the obligation) to use, archive, stream, copy, distribute, publicly perform, create derivative works of, transmit, and otherwise exploit, in whole or in part, User-Generated Content, in any manner or medium now known or hereafter devised. This exploitation may include, without limitation, use of User-Generated Content to endorse Vertigo or third-party products and services. Additionally, you further grant Vertigo a non-exclusive, transferrable, sublicensable, perpetual, irrevocable, fully paid up, royalty-free, worldwide right and license to exploit your name, likeness, personality, voice, and any other materials or information you provide to Vertigo.
You hereby irrevocably waive any and all rights to seek or obtain any injunctive or other equitable or compensatory relief against Vertigo for its use or exploitation of User-Generated Content submitted to the Platform as licensed herein, as well as any claims under "moral rights" or similar theories. You agree that Vertigo enabling you to provide us with User-Generated Content is adequate and sufficient consideration for our use of User-Generated Content, you will not receive any additional consideration or compensation for Vertigo's exploitation of User-Generated Content, and Vertigo has no obligation to use any User-Generated Content.
Other than as provided in this Agreement, you will retain ownership of all rights in Your Content. You shall be solely responsible for User-Generated Content and the consequences of submitting and publishing User-Generated Content on the Platform. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User-Generated Content; and you license to Vertigo all patent, trademark, trade secret, copyright, or other proprietary rights in and to User-Generated Content for publication on the Platform pursuant to these Terms of Service.
You further agree that when posting User-Generated Content or otherwise using our Platform, you will not revise or alter any User-Generated Content posted by others, and you agree not to post or use any User-Generated Content in any manner that (a) infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others; (b) violates the privacy, publicity, or other rights of third parties; (c) is discriminatory, defamatory, obscene, threatening, abusive, or hateful, as determined by Vertigo in its sole discretion; (d) is false or inaccurate; (e) violates any applicable local, state, national and international laws or regulations, civil or criminal; or (f) violates our policies, including but not limited to our Community Guidelines, lntellectual Property Policy and Song Story Contest Official Rules.
You are not allowed to post User-Generated Content or engage in behavior on our Platform that is intended to maliciously harass, threaten, stalk, intimidate, or bully others. You are not allowed to reveal someone’s personal information, such as their address, private e-mail addresses, phone numbers, passport number, or bank account information on our Platform. In addition, you are prohibited from posting any content that: (a) is deliberately posted in order to humiliate someone; (b) makes hurtful and negative personal comments/videos about another person; (c) incites others to harass or threaten individuals on or off the Platform; (d) features non-consensual sex acts or unwanted sexualization; (e) threatens specific individuals with physical harm or destruction of property; (f) features abusive or threatening behavior directed at a minor; (g) sexualizes or degrades an individual who is engaged or present in an otherwise non-sexual context; or (h) claims that specific victims of public violent incidents or their next of kin are actors, or that their experiences are false. This policy applies to photos, videos, photo or video descriptions, comments, live streams, and any other User-Generated Content on our Platform. This is not an exhaustive list of prohibited content.
If you see content that violates this policy or our Community Guidelines, please report it. Instructions for reporting violations are available on our Community Guidelines page. We take all reports of harassment and cyberbullying on our Platform seriously. If a conversation rises to the level of bullying or harassment of a specific person, we'll remove the offending User-Generated Content and take any other actions deemed appropriate by us, with or without notice.
17. Export Control and Legal Compliance.
The Platform is operated out of the United States. We make no representation that the Platform, or content or information available via the Platform, is appropriate or available for use outside the United States, and access to it from jurisdictions where the content is illegal is prohibited. Those who choose to access the Platform from outside the United States do so at their own risk and initiative and are responsible for compliance with all applicable laws.
The Platform may be subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations. You may not use or export any materials via our Platform in violation of any export, re-export or import laws and regulations of the United States or any other jurisdiction. You represent and warrant that you are not located in a country that is: (a) subject to an embargo by the United States or that has been designated by the United States Department of State as a state sponsor of terrorism; or (b) included on any list of prohibited, restricted, or sanctioned parties published by the United States.
18. Online Store.
Our store (https://store.vertigomusic.com, hereinafter "Store") is hosted by and on Shopify, Inc. ("Shopify"). Shopify provides us with the online e-commerce platform that allows us to sell our products and services to you. By agreeing to this Agreement, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to access the Store.
(a) General Conditions. You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Store, violate any laws in your jurisdiction (including but not limited to copyright laws). We reserve the right to refuse service to anyone for any reason at any time. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
(b) Modifications to the Store and Prices. Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Store (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Store.
(c) Product Availability. Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Returns Policy. We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Store will be corrected.
(d) Accuracy of Billing and Account Information. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your e-mail address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
(e) Errors, Inaccuracies, and Omissions. Occasionally, there may be information on our Store that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Store or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend, or clarify information in the Store or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Store or on any related website, should be taken to indicate that all information in the Store or on any related website has been modified or updated.
19. Disclaimers; Limitations of Liability.
SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY PROHIBITS SUCH EXCLUSIONS, THOSE SUCH EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
THE SERVICES (INCLUDING ANY SOFTWARE AND CONTENT CONTAINED THEREIN) ARE LICENSED AND PROVIDED "AS IS" AND "AS AVAILABLE". ANY USE OF THE SERVICES WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VERTIGO DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. VERTIGO MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR WILL NOT CONTAIN CONTENT YOU DEEM OFFENSIVE, INDECENT, OR OTHERWISE OBJECTIONABLE, AND VERTIGO DISCLAIMS ANY LIABILITY RELATING THERETO. VERTIGO MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE USE OF OR THE RESULTS OF THE USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, BE ACCURATE, RELIABLE, CURRENT, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY PROHIBITS SUCH EXCLUSIONS OR LIMITATIONS, THOSE SUCH EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
OUR CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE PLATFORM WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAID FOR THE APPLICABLE PORTION OF THE SERVICES AT ISSUE WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL VERTIGO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF VERTIGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
You agree to defend (at our option), hold harmless, and indemnify us from and against all third-party claims and all liabilities, assessments, losses, costs, or damages resulting from or arising out of (a) your alleged or actual breach of this Agreement, including your express representations and warranties; (b) your use or misuse of the Platform; and (c) your alleged or actual infringement or violation of the rights of a third party, including without limitation any intellectual property rights, rights of publicity, and rights of privacy.
21. Term and Termination.
Subject to the terms of this section, this Agreement will remain in effect for as long as you use the Platform. You may cancel your account and terminate this Agreement at any time and for any reason. We may terminate this Agreement and your access to the Platform at any time and for any reason, with or without notice to you. Upon any termination of this Agreement, the rights and licenses granted to you hereunder, including your ability to access and use the Platform, will immediately terminate, and you shall immediately cease using any and all materials and other similar content in your possession or control that are proprietary to Vertigo. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to the termination of this Agreement. Any provision of this Agreement that should, by its nature, survive termination of this Agreement will survive its termination.
We may provide notices to you about changes, products and services related to Vertigo within the app or to the e-mail address you provided us. You hereby consent to receive notice from us through the foregoing means, and you are deemed to have received such notices at the latest within two (2) business days from us posting or sending a notice. You are responsible for keeping your account information, including your e-mail address, up to date. Vertigo assumes no liability nor any responsibility for any consequences resulting from your provision or use of outdated, incomplete, or inaccurate information in connection with the Platform. Except as otherwise provided for herein, any notices required to be delivered to Vertigo under this Agreement may be delivered via First Class Registered U.S. mail, overnight courier, or personal service to Vertigo Media, Inc., 14835 Ballantyne Village Way, Suite 200, Charlotte, North Carolina, 28277, United States.
Vertigo may assign this Agreement or delegate any of our rights or obligations hereunder, or any part thereof, to any third party, including our successor in interest, without requiring your written consent. You may not assign this Agreement in whole or in part, for any reason. This Agreement will be binding upon and will inure to the benefit of the parties and their heirs, executors, administrators, successors, and assigns.
24. Third-Party Beneficiaries.
Except with respect to platform providers through which you download or use applications certified by Vertigo, nothing in this Agreement, either express or implied, is intended to or will be deemed to confer upon any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
25. Third-Party Provisions.
If you downloaded the App from the Apple App Store®, then this section applies to you. You acknowledge that: (a) these Terms are between you and Vertigo; (b) Vertigo, not Apple Inc. ("Apple"), is solely responsible for the App and the content therein; (c) Apple has no obligation to furnish any maintenance or support for the App; Vertigo, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including but not limited to product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation; and (d) in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Apple will have no responsibility for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any applicable warranty will be Vertigo’s responsibility. 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. You and Vertigo 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.
Governing Law and Disputes.
(a) Governing Law. This Agreement, including all claims relating to or arising hereof or breach thereof, whether sounding in contract, tort, or otherwise, will be governed and construed in accordance with the laws of the state of North Carolina, excluding its choice-of-law principles.
(b) Applicability of Section. The terms of this section 23 will apply to all disputes that may arise out of, are connected with, or relate to this Agreement or the Platform, subject only to the following exceptions: (1) if Vertigo reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to us or any third party, we may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Mecklenburg County, North Carolina, provided that all claims by all parties in the dispute (i) fall within the jurisdiction of the small claims court, and (ii) were unsuccessfully resolved through the Informal Resolution procedure required in section 23(c) below. Furthermore, in no event will the terms of this section limit Vertigo's ability to investigate complaints or reported violations of this Agreement, or to take any action we deem necessary and appropriate to mitigate actions against us, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties such as music rightsholders.
(c) Informal Resolution. If you have any dispute with us or any related third party, arising out of, relating to, or connected with this Agreement or the Platform, you agree to contact us directly and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give us thirty (30) days from the date of filing your written description with us within which to resolve the dispute to your reasonable satisfaction. If Vertigo does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
(d) Arbitration Agreement. Any claims by Vertigo, or claims by you that are not resolved by the Informal Resolution procedure described in section 23(c) above, arising out of, relating to, or connected with this Agreement must be asserted individually in binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel). This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided above) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement.
The arbitration proceeding and the results thereof will be kept confidential by each party and not used for any purpose other than a party exercising its rights and fulfilling its obligations with respect to the other party; provided, however that either party may disclose the existence and results of the proceeding: (1) as required by law, rule, or regulation; (2) to its accountants, attorneys, and other fiduciaries; and (3) to an arbitrator or third party who has exercised its rights under this section 23 for use as persuasive authority in other proceedings brought pursuant to this section 23.
(e) Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Platform or any term or condition of this Agreement, must be filed within twelve (12) months of the date the facts giving rise to the suit were known or should have been known by you, or forever be barred.
In the event any provisions of this Agreement are found to be contrary to any law or regulation of an administrative or governmental agency or body, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event such a provision cannot be modified and becomes invalidated or unenforceable, its invalidation or unenforceability will not affect the validity or enforceability of any other provision of this Agreement.
28. Entire Agreement.
29. Questions Regarding this Agreement.
If you have any questions regarding this Agreement, you may contact us at firstname.lastname@example.org.