We may at our discretion change the terms of this Agreement at any time and will post a copy of the amended Agreement on the Site and on the Applications. We will also update the “Last Updated” date in any such amended Agreement. Such changes shall be effective upon posting by us, and if you use the Yo Radio service after that date, your use will constitute acceptance of the revised terms and conditions.
However, no revisions to this Agreement will apply to any dispute between you and Yo Radio that arose prior to the date of such revision. If you do not agree to, or cannot comply with this Agreement, as amended, then you must stop using the Yo Radio Service and cancel your Yo Radio account(s). We encourage you to check the Yo Radio policies on the Applications or Site frequently.
END USER LICENSE AGREEMENT AND TERMS OF SERVICE
EFFECTIVE DATE: April 1, 2017
This End User License Agreement and Terms of Service (the “EULA”) is a binding contract between you, an individual user (“you”) and Yo Radio (“Yo Radio”, “us” or “we”) governing your use of the Yo Radio mobile application (the “App”) and affiliated website located at staging.yoradio.com (the “Website”) (the App and the Website are, collectively, the “Service”).
BY ACCESSING THE WEBSITE OR BY INSTALLING OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.
- Summary of Material Terms. As provided in greater detail in the EULA (and without limiting the express language of the EULA), you acknowledge the following:
- the App is licensed, not sold to you, and that you may use the App only as set forth in the EULA;
- the use of the App and Website may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the App and Website are provided “as is” without warranties of any kind and Yo Radio’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration;
- by accepting the EULA, as provided in greater detail in Section 20 of the EULA, you and Yo Radio are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: location and, if you are using Yo Radio on an Android device, your device identifier; and
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below.
- Description. The Service provides Users (as defined below) with a variety of noninteractive radio channels, curated and programmed for you by some of radio’s finest talent.
- Third Party Fees. Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms. You acknowledge and agree that you are solely responsible for all such fees incurred by you for use of the Service.
- Service Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Yo Radio’s sole discretion. Yo Radio reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
- Changes to the EULA. The Service is owned and operated by Yo Radio. Yo Radio reserves the right to revise the EULA in its sole discretion at any time and without prior notice to you other than by posting the revised EULA within the App and on the Website. Revisions to the EULA are effective upon posting. The EULA will be identified as of the most recent date of revision. Your continued use of the Service after a revised version of the EULA has been posted by Yo Radio constitutes your binding acceptance of such revised EULA. Notwithstanding the preceding sentences of this Section 2.e, no revisions to the EULA will apply to any dispute between you and Yo Radio that arose prior to the effective date of such revision.
- Eligibility. If you are using or opening an account on the Service on behalf of a company, entity, or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to the EULA and (ii) agree to be bound by the EULA on behalf of such Subscribing Entity.
- Children. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY YO RADIO. In order to use the Service, you must either be 18 years of age or possess parental or guardian consent, and you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the EULA and to abide by and comply with the EULA. If you are under 18 years of age, by using the Service you certify that your parent or guardian has consented to your use of the Service and to the EULA on your behalf, and you acknowledge and agree that your use of the Service is at their discretion. Until you are 18 years old, your parent or guardian may ask us to modify, deny access to, or terminate your account and we may do so at their request or at any time, for any reason, without notice and liability. BECAUSE THE SERVICE MAY PROVIDE ACCESS TO MUSIC OR OTHER CONTENT THAT CONTAINS EXPLICIT CONTENT INCLUDING STRONG LANGUAGE OR DEPICTIONS OF VIOLENCE, SEX OR SUBSTANCE ABUSE, PARENTAL DISCRETION IS ADVISED FOR ALL USERS AGES 13 TO 17.
- Evolving Nature of Service. The Service is continually evolving and changes to the Service may be made at any time. If you don’t like the Service or in any way disagree with the EULA, we hope you will let us know and give us constructive feedback. Please feel free to e-mail us at any time at firstname.lastname@example.org.
- Guidelines. When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All Guidelines are hereby incorporated by reference into these Terms. Terms is to discontinue your use of the Service.
- Scope of License to Users.
- License Grant to You. The Service is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, Yo Radio hereby grants you a personal, limited, revocable, non-transferable license to (i) use the App on compatible, authorized devices that you own or control and (ii) access and use the Website, in both instances solely for your own use or for the Subscribing Entity on whose behalf you are authorized to act.
- License Limitations. You may not modify, alter, reproduce, or distribute the App. You may not directly rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any External Service (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service, including, but not limited to, any sound recordings accessible through the Service, and any musical works embodied therein. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and loss of access to the Service.
- Applicability to Updates. The terms of the EULA will govern any updates provided to you by Yo Radio that replace and/or supplement the App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
- Registration and Eligibility.
- Access. Access to the Service is only available to registered users (“Users”). If you do not agree to register and accept the terms of the EULA, then you are not permitted to use the Service.
- Theft of Log-In Credentials. If your log-in credentials are lost or stolen, or if you believe that unauthorized third parties have accessed your Account, you should notify Yo Radio immediately via e-mail to email@example.com, and should change your password at the earliest possible opportunity. Yo Radio will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Yo Radio of such unauthorized use or loss of your credentials.
- Accuracy of Information; Rejection of Registered Names. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of the EULA, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Yo Radio. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an e-mail address provided by you are returned as undeliverable, Yo Radio reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
- Content You Submit; License Grants From You. We may provide you with the opportunity to post a comment or review on the Service.
- You Own the Content You Submit. Any and all audio, musical works, audiovisual, video, text, photographs, pictures, graphics, artwork, comments, and other content, data or information (collectively, “Content”) that you upload, store, transmit, submit, exchange or make available to or via the Service (“Your Content”) is generated, owned, and controlled solely by you, and not by Yo Radio. Yo Radio does not claim any ownership rights in Your Content, and you hereby expressly acknowledge and agree that you own any Content you submit and that such Content, including any fees, royalties, payments, credits or other obligations associated therewith, remains your sole responsibility.
- License Grants to Yo Radio.
- Notwithstanding Section 5.a, by uploading and/or submitting you Content to the Service, and in consideration of the opportunity to have Your Content exposed to and consumed by other Users and the promotional value received therefrom, you hereby grant to Yo Radio (and Yo Radio’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the world and during the term of the EULA to reproduce (including in timed relation to visual images in audiovisual works uploaded to the Service by you (but not in works uploaded by third parties)), distribute, publicly display, transmit, communicate to the public, publicly perform on an interactive and/or noninteractive basis (including by means of digital audio transmissions) on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Content you upload to or through the Service, on an item-by-item basis, through any media and formats now known or hereafter developed, for the purposes of: (i) transmitting or distributing Your Content to Users; (ii) sharing information about Your Content with third parties for any Use or purpose selected by Yo Radio and permitted in the EULA; and (iii) advertising, marketing, and promoting Yo Radio, the Service, and the availability of Your Content on and through the Service.
- License for Name, Image, Voice, and Likeness. You further grant Yo Radio a royalty free license to Use your name, image, voice, and likeness made available by or on your behalf through the Service in conjunction with advertising, marketing, or promoting you, Your Content, Yo Radio or the Service. The foregoing license in the immediately preceding sentence shall survive the termination of your Account with respect to any of Your Content submitted or uploaded to the Service prior to such termination.
iii. License for Advertising. You further grant Yo Radio the right to include Advertising (as defined below, whether audio, display, or audio-visual) in and around Your Content uploaded to the Service.
- Limited Waiver of Rights. By uploading Content to or through the Service you waive any rights to prior inspection or approval of any Use of Your Content in marketing or promotional materials related to such Content created by Yo Radio. You further waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with Your Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Content you upload to or through the Service, during the term of the EULA. You expressly release Yo Radio and all of Yo Radio’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of Your Content as authorized in the EULA.
- Through-to-the-Audience Rights. All of the rights granted in the EULA by you are provided on a through-to-the-audience basis, meaning, by way of example and not limitation, the owners or operators of External Services (as defined in Section 8.a) will not have any separate liability to you or any other third party (e.g., a PRO) for Content publicly performed, publicly displayed, made available or communicated to the public through such External Services via the Service.
- Do No Upload Content for Which You Lack the Necessary Rights. You must not upload, store, host, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any Content to which you do not hold the necessary rights. In particular, any unauthorized use of copyrighted material within Your Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the App) without full ownership and/or control, or written and valid permission to do so, may constitute an infringement of third party rights and is strictly prohibited. Any such infringements may result in termination of your access to the Service as described in Section 14, damages against you for breach of the EULA, and civil litigation or criminal prosecution against you.
- Representations and Warranties With Respect to Content You Upload. Except for materials provided, to you by Yo Radio through the Service, you represent, warrant, and covenant that (A) you either are the sole and exclusive owner of all of Your Content that you submit to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Yo Radio the rights in Your Content as contemplated under the EULA, and (B) neither the Content you submit to the Service nor your creation of, accessing, posting, submission or transmission of Your Content or Yo Radio’s Use of Your Content (or any portion thereof) as permitted in the EULA will (1) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (2) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (3) require Yo Radio to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
- Prohibition on Uploading Objectionable Content. You agree not to submit Content that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred (collectively, “Objectionable Content”), as determined by Yo Radio in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
- Fees. Yo Radio reserves the right to charge a fee for using the Yo Radio Service. If Yo Radio elects to charge a fee for the use of the Yo Radio Service, Yo Radio will provide you with notice of such fees. You do not have an obligation to continue using the Yo Radio Service should Yo Radio exercise its right to charge a fee. You are responsible for paying any fees due for the use of the Yo Radio Service upon your use of the Yo Radio Service following actual or constructive knowledge of such fees, as well as any governmental taxes imposed on your use of the Yo Radio Service, including, but not limited to, sales, use or value-added taxes.
- Third Party Materials; Yo Radio Content.
- You understand that by using the App, you may encounter data, information, applications, materials and other content from third parties, including other Users (collectively, “Third Party Materials”), and data, information, applications, materials and other content from Yo Radio (collectively, “Yo Radio Content” and, together with Third Party Materials, but excluding Your Content, “Service Content”), that may be offensive, indecent, or objectionable, and which may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service at your sole risk and that Yo Radio shall not have any liability to you for any Service Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. You use the Service, and rely upon any Service Content accessible through the Service, at your sole risk.
- You agree and understand that the Service contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the Service. No portion of the Service may be reproduced or resold, leased, or rented by you in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever (e.g., hack the Service), including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Yo Radio is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the Service.
- In addition, third party services and Service Content that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Yo Radio makes no representation that the Service, any third party services, and Service Content are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any and all applicable laws. Yo Radio and its licensors reserve the right to change, suspend, remove, or disable access to the Service at any time without notice. In no event will Yo Radio be liable for the removal or disabling of access to all or any portion of the Service at any time. Yo Radio may also impose limits on the use of or access to all or any portion of the Service at any time, in any case and without notice or liability. You are solely responsible for maintaining back-up copies of any Content you upload to the Service. Although we may attempt to notify Users prior to the disabling of access to all or any portion of the Service, we are not obligated to provide such notice and you should not rely upon the continued availability of the Service for any Content.
- Third Party Websites, Applications and Services.
- The Application may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “External Services”).
- No Control Over External Services. Yo Radio does not have or maintain any control over External Services, and is not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any External Services, Yo Radio does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.
- Disclaimer of Liability for External Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services. Yo Radio disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against Yo Radio with respect to the content or operation of any External Services.
- Your Use of the Service, Content, and Service Content. Your right to use the Service is expressly conditioned on the following:
- You may access the Service solely as intended through the provided functionality of the Service and as permitted under the EULA.
- Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without Yo Radio’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Yo Radio’s express written consent:
- altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
- using any trademarks, service marks, design marks, logos, photographs or other content belonging to Yo Radio or obtained from the Service.
- You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the App designed to control the manner in which the Service is used, harvest or mine Service Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
- You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any Service Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by the EULA, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Yo Radio.
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Service Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Yo Radio makes available the means for embedding any part of the Service or Service Content.
- You agree not to access, tamper with, or use non-public areas of the Service, Yo Radio’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Yo Radio’s providers.
- You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Yo Radio employees and other Users.
- You agree not to provide any false personal information to Yo Radio or any other User, or create a false identify or impersonate another person or entity in any way.
- You agree not to create a new account with Yo Radio, without Yo Radio’s express written consent, if Yo Radio has previously disabled an account of yours.
- You agree not to solicit, or attempt to solicit, personal information from other Users.
- You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users.
- You agree not to use the Service, without Yo Radio’s express written consent, to communicate or facilitate any commercial advertisement or solicitation.
- You agree not to gain unauthorized access to the Service, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
- You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
- You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
- You agree not to violate any applicable federal, state or local laws or regulations or the EULA.
- You agree not to assist or permit any persons in engaging in any of the activities described above.
A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
- Third Party Software. The software you download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail in Section 23. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of the EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in the EULA is intended to impose further restrictions on your use of the Third Party Software.
- Consent to Use of Data.
- Ownership of User Engagement Data. Yo Radio shall own all right, title and interest in and to any and all data and information directly and indirectly collected and related to the operation of the Service, including, but not limited to, Yo Radio.
- Ownership. The Service, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of Yo Radio and its licensors. Except for the limited licenses expressly granted to you under the EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted to you under the EULA, either expressly, or by implication, estoppel or otherwise.
- Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Yo Radio or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Yo Radio, you agree that:
- Yo Radio has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Yo Radio is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Yo Radio and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- You are free to terminate your use of the Service at any time. If you wish to terminate your account on the Service, then you may do so by sending an e-mail to firstname.lastname@example.org or using any other account termination functionality that may be offered through the Service. Simply deleting the App from your mobile device will not effectively terminate your account. Upon any termination of the EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App.
- Yo Radio may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating the EULA or upon Yo Radio’s sole determination. You hereby agree to Yo Radio’s broad right of termination. You agree that if your use of the Service is terminated pursuant to the EULA, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor.
- Once your Account has been terminated, Yo Radio may delete any of your User Content available on or through the Service, including any data pertaining to activity from your Account (for example, music preference data or favorite stations list) and terminate your access to your such content and data if those materials remain on the Service, without any liability to you. Yo Radio assumes no liability for any material that is irretrievably deleted following any termination of your Account.
- Indemnity. You agree to indemnify and hold Yo Radio, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Service Content, or (b) your violation of the EULA. Yo Radio will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Yo Radio is unable to communicate with you in a timely manner because of an inactive e-mail address for you, your indemnification obligation will continue notwithstanding Yo Radio’s inability to contact you in a timely manner. You agree that Yo Radio shall, at your expense, have sole control over any defense against any claim for which you are obligated to indemnify Yo Radio pursuant to this Section 15; provided, however, that you shall at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of your own selection, if desired, at your own expense.
- No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ALL SERVICE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND YO RADIO HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANY SERVICE CONTENT OFFERED BY YO RADIO, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YO RADIO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR NOT INTERFERE WITH YOUR USE OR ENJOYMENT OF ANY OTHER PRODUCTS, GOODS OR SERVICES, INCLUDING APPLICATIONS ON ANY DEVICE ON WHICH YOU HAVE INSTALLED THE APP OUR OR SOFTWARE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY YO RADIO OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THE EULA. SHOULD ALL OR ANY PORTION OF THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW. YOU UNDERSTAND THAT YOU MAY ENCOUNTER OFFENSIVE, INDECENT OR OTHER OBJECTIONABLE CONTENT, INCLUDING THIRD PARTY ADVERTISEMENTS, WHEN USING THE YO RADIO SERVICE. YO RADIO WILL HAVE NO LIABILITY TO YOU FOR ANY SUCH CONTENT.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL YO RADIO OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF YO RADIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL YO RADIO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
- Third Party Disputes. YO RADIO IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR EXTERNAL SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, EXTERNAL SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE YO RADIO (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, PARTNERS, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Yo Radio respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Yo Radio’s intellectual property policy is to (a) remove or disable access to material that Yo Radio believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the App, and (b) remove any Content uploaded to the App by “repeat infringers.” Yo Radio considers a “repeat infringer” to be any User that has uploaded Content or Feedback to or through the App and for whom Yo Radio has received two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such Content or Feedback. Yo Radio has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Yo Radio’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Yo Radio with the User alleged to have infringed a right you own or control, and you hereby consent to Yo Radio making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Yo Radio to locate the material;
- Information reasonably sufficient to permit Yo Radio to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Yo Radio’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: 103 W. Vandalia, Suite #100, Edwardsville, IL 62025
- Counter Notification. If you receive a notification from Yo Radio that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Yo Radio with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Yo Radio’s Designated Agent through one of the methods identified in Section 19.d and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification 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;
iii. A statement under penalty of perjury that the subscriber has 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; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Yo Radio may be found, and that the subscriber will accept service of process from the person who provided notification under Section 19.c above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Yo Radio in response to a Notification of Claimed Infringement, Yo Radio will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Yo Radio will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Yo Radio will replace the removed Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Yo Radio’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Yo Radio’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
17 U.S.C. § 512(f).
Yo Radio reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act or the procedures set forth in this Section 19 should be sent to the Designated Agent at firstname.lastname@example.org, or to the postal address of facsimile number identified above. Any other comments, compliments, complaints or suggestions about Yo Radio, the Service or any other matter should be sent to email@example.com.
- Dispute Resolution.
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND YO RADIO AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Yo Radio, to you via any other method available to Yo Radio, including via e-mail. The Notice to Yo Radio should be addressed to Yo Radio, 103 W. Vandalia, Suite #100, Edwardsville, IL, 62025, Attn: Chief Legal Officer (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Yo Radio do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Yo Radio may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Yo Radio, then Yo Radio will promptly reimburse you for your confirmed payment of the filing fee upon Yo Radio’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator with his or her primary place of business in Madison County, Illinois, shall be appointed pursuant to the Rules, as modified herein. You and Yo Radio agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND YO RADIO AGREE THAT YOU AND YO RADIO 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. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of Illinois in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Yo Radio seeks equitable relief of any kind. You acknowledge that, in the event of a breach of the EULA by Yo Radio or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Yo Radio, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in the EULA.
- Claims. You and Yo Radio agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to the EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against Yo Radio must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Yo Radio may recover attorneys’ fees and costs up to $5,000, provided that Yo Radio has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- Modifications. In the event that Yo Radio makes any future change to the Mandatory Arbitration provision (other than a change to Yo Radio’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Yo Radio’s Arbitration Notice Address, in which case your account with Yo Radio and your license to use the Service shall terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, shall survive the termination of the EULA.
- Enforceability. If only Section 20.a.iii or the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 21 shall govern any action arising out of or related to the EULA.
- Governing Law; Choice of Forum. The laws of the State of Illinois, excluding its conflicts of law rules, govern the EULA and your use of the App. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in Madison County, Illinois, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- Amendment. Except as expressly provided in the EULA, the EULA may be amended only by a written agreement signed by the party against whom such change is to be enforced.
- Waiver. A provision of the EULA may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Yo Radio in the exercise of any power or right under the EULA shall operate as a waiver thereof. No single or partial exercise of any right or power under the EULA shall operate as a waiver of such right or of any other right or power. The waiver by Yo Radio of a breach of any provision of the EULA shall not operate or be construed as a waiver of any other or subsequent breach of the EULA.
- Severability. Except as expressly provided for in Section 20.f, if any provision of the EULA shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the remainder of the EULA and shall not affect the validity and enforceability of any remaining provisions.
- Assignment. You may not assign the EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of Yo Radio. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Yo Radio may assign the EULA, including all its rights hereunder, without restriction.
- No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Yo Radio as a result of the EULA or use of the Service. You further acknowledge that by submitting Your Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Yo Radio other than pursuant to the EULA .
- Survival. The provisions of the EULA that are intended to survive the termination of the EULA by their nature will survive the termination of the EULA, including, but not limited to, Sections 2 (General), 5 (Content You Submit; License Grant from You), 6 (Subscription and Billing), 7 (Third Party Materials; Yo Radio Content), 8 (Third Party Websites, Applications and Services), 9 (Your Use of the Service, Content and Service Content), 10 (Third Party Software), 11 (Consent to Use of Data), 12 (Ownership), 13 (Feedback), 14 (Termination), 15 (Indemnity), 16 (No Warranty), 17 (Limitation of Liability), 18 (Third Party Disputes), 19 (Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements), 20 (Dispute Resolution), 21 (Governing Law; Choice of Forum), and 22 (Miscellaneous).
- Headings. The heading references in the EULA are for convenience purposes only, do not constitute a part of the EULA, and shall not be deemed to limit or affect any of the provisions thereof.
- Contacting Yo Radio. You can contact Yo Radio by e-mail at firstname.lastname@example.org, or by U.S. Post at Yo Radio, 103 W. Vandalia, Suite #100, Edwardsville, IL 62025.
NOTICE REGARDING APPLE. You acknowledge that the EULA is between you and Yo Radio only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and upon your acceptance of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary of the EULA. You hereby 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. If Yo Radio provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version shall prevail.
- Third Party Software.
In addition to Yo Radio’s copyrights, this product contains software components subject to the following third party copyrights and license terms:
Copyright (c) 2017 RadioFonic <email@example.com>
The following libraries are subject to the terms of the MIT License: RadioFonic
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS ORIMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THEAUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHERLIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS INTHE SOFTWARE.