Last Updated: January 27, 2022
Welcome, and thank you for your interest in Spoon Radio, Inc., together with Spoon Radio US, Inc. and their respective parents subsidiaries and affiliated entities (“Spoon,” “we,” or “us”), and our website at https://www.spooncast.net, along with our related websites, networks, applications, mobile applications, and other services provided by us in the United States (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Spoon regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SPOON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.)
- Spoon Service Overview. The Service offers a live-audio, social broadcasting platform that allows users to broadcast audio content in real time to other users of the Service. Those who broadcast on the service are called “Streamers” (formerly referred to as “DJs).” The Service also allows users to Post (defined below) chat messages and other User Content (defined below) and purchase Virtual Items (defined below) to use within the Service in accordance with these Terms.
- Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. Certain age restrictions may apply to the use of some features of the Service (including, for example, the purchase of Virtual Items (defined below)), depending on applicable laws and the policies of Spoon and its third-party vendors.
- Accounts and Registration. To access most features of the Service, you must register for an account, which may include the ability to register through certain third-party account login credentials, such as Twitter or Facebook. When you register for an account, you may be required to provide us with some information about yourself, such as your gender identification, email address, phone number, birthdate, other contact information, and in some cases where legally permitted, you may be asked to provide a form of government identification. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password or third-party login credentials, if enabled by us. You are solely responsible for maintaining the confidentiality of your account and passwords, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
- General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
4.1 Price. Spoon reserves the right to determine pricing for the Service. Spoon will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Spoon may change the fees for any feature of the Service, including additional fees or charges, if Spoon gives you advance notice of changes before they apply. Spoon, at its sole discretion, may make promotional offers with different features and different pricing to any of Spoon’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Spoon to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Spoon, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Spoon may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. In order to use a credit card for any payments in connection with the Service, you must be at least 18 years old.
- Virtual Items.
5.1 Virtual Items. We may allow users to purchase virtual digital items (“Spoons”) at a price determined by Spoon. Users cannot purchase more than $1,000 worth of Spoons in any given day. Certain features of the Service allow Users to react to favored User Content with virtual digital rewards (“Gifts”) in order to express approval of the User Content. Apart of sending Gifts to Streamers, you may also use Spoons to obtain digital items directly from Spoon, such as extending the time Streamers may post User Content. Reacting to User Content with Gifts, and the use and purchase of Spoons (defined below) are transactions solely between the user and Spoon. Each reaction with a Gift has a value in digital points (“Coins”) determined by Spoon. The terms “Spoons”, “Gifts”, and “Coins” are hereinafter collectively referred to as “Virtual Items.” Users can obtain Virtual Items in the various ways provided by Spoon in its sole discretion and in accordance with these Terms. Coins may not be transferred between users or accounts and may not be converted, exchanged, or otherwise redeemed for government-issued currency or virtual currency, except through the Streamer Program described below or as otherwise required by law. All non-standard transactions between users related to Virtual Items are prohibited. We may limit the amount of Virtual Items that you may purchase or hold at any time.
5.2 Not Currency. Each of the Virtual Items perform different functions on the Service, and each are subject to their own terms and conditions, as specified in these Terms. They also have some things in common. In particular, Virtual Items are not money. While we may use terms like “buy”, “purchase”, or “sell” in reference to some Virtual Items, such uses are merely for convenience and do not mean that Virtual Items have any particular cash value. When you “send” a Virtual Item, you are sending it to Spoon to display and register your approval of the referenced User Content. Any Virtual Items that you obtain or access on the Service are provided to you under a limited, personal, revocable, non-transferable license to use only on the Service. The Service may enable you to react to Streamers, users, or User Content using Gifts; but any and all transfers of Virtual Items between users (including the transfer of accounts) not expressly permitted under these Terms or the terms and conditions of the Streamer Program are expressly prohibited, including any sale or exchange, whether direct or through an intermediary such as an auction service. Virtual Items are provided to you for entertainment purposes only. Virtual Items are not property, and you have no right, title, or interest in any Virtual Items, nor any right to exchange Virtual Items for any virtual currency or for government-issued currency, except as required by law.
5.3 No Liability for Virtual Items. Prices, availability, exchangeability, and transferability of Virtual Items are determined by Spoon in its sole discretion and are subject to change without prior notice to you. Subject to applicable law and any other written and signed agreement entered into between you and Spoon in addition to these Terms, you agree that Spoon has the absolute and unrestricted right to manage, restrict, distribute, control, modify, withdraw, cancel, eliminate, change the prices or methods of exchange of, or reduce or limit the supply of Virtual Items in its sole discretion, and that Spoon will have no liability to you or to any third party for exercising any such rights. Under no circumstances will Spoon be liable to you for any damages or claims that may arise from the loss of Virtual Items, regardless of the circumstances. Without limiting anything in this Section, Spoon’s liability to you for the loss of any Virtual Items, or the use or enjoyment thereof, will under no circumstance exceed the replacement of such Virtual Items, or the provision of alternative Virtual Items as determined by Spoon at its discretion.
5.4 Virtual Items Purchase Terms. The purchase of Virtual Items is a transaction solely between the user and Spoon. When you purchase Virtual Items on the Service, you will have an opportunity to review and accept the fees that you will be charged. Spoon may use third-party payment processors to execute such transactions, and all such transactions are subject to the legal terms and privacy policies of our payment processors. By clicking to complete the purchase, you authorize us and our payment processors to charge your provided payment method (such as a credit card or debit card) the full amount of such purchase, including any taxes. All purchases are final and non-refundable. If you request a chargeback from your issuing bank after having authorized a purchase, and we believe in our sole discretion that you have not disputed the transaction in good faith, your Service account may be terminated with no recourse. In order to purchase Spoons or other Virtual Items that Spoon may make available, you must be at least 18 years old. Except where prohibited by applicable law, Spoons expire five years from the date of purchase.
5.5 Eligibility for Streamer Program. Spoon wishes to motivate users to post original, creative User Content that is of high quality and interesting for our users. To motivate users accordingly, users that act as Streamers on the Service may receive Gifts from other users of the Service, and if a Streamer receives a certain value of Gifts (determined by Spoon at its discretion), then that user may be eligible to receive compensation as part of Spoon’s program for Streamers (the “Streamer Program”). Any user that acts as a Streamer on the Service will automatically get enrolled by Spoon in the Streamer Program, unless Spoon determines such user is ineligible for enrollment in the Streamer Program. In order to receive any compensation or payouts in connection with the Streamer Program, a user acting as a Streamer must first accept the Streamer Program Terms (available here: [Streamer Program]) (the “Streamer Program Terms”), which are incorporated into these Terms by this reference, Spoon is the sole decision-maker as to whether and how users may be compensated in connection with the Streamer Program or otherwise.
5.6 Forfeiture and Expiration of Virtual Items. Virtual Items as with Spoons have a five-year expiration date, but maybe terminated, forfeited, discontinued, or otherwise cease as set forth in these Terms. If Spoon terminates your Service account in accordance with these Terms, your license to all Virtual Items (including Spoons, Gifts, and Coins) associated with your Service account will terminate immediately and all Virtual Items associated with your Service account will be forfeited, without compensation of any kind to you.
6.1 Automatically Renewing Subscriptions. Spoon may, from time to time, offer subscriptions (“Subscriptions”) that provide bundled Virtual Items or features or opportunities not available as part of the free-of-charge service. If you purchase a Subscription, you are subscribing to an automatically renewing subscription requiring recurring payments at the stated frequency (e.g., monthly or annual) until cancelled. When you purchase a Subscription, you must provide accurate and complete information for a valid payment method that you are authorized to use—this information may be collected and processed by a third-party app store or platform. If you purchase a Subscription, you will be charged your first subscription fee and any applicable taxes on the date you purchase your Subscription. Your subscription will automatically continue at the selected interval , and you will continue to be charged at the then-current price (including any applicable taxes), unless at least 24 hours prior to the end of the current subscription period: (a) you terminate your account; (b) you cancel your subscription (as described below); (c) we decline to renew your subscription; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The subscription fee is non-refundable except as expressly set forth in these Terms or in accordance with applicable law. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your access to the Service or cancel your Subscription. You will be responsible for paying all past due amounts.
6.2 Cancellation. When you cancel a Subscription, you cancel only future charges associated with your Subscription. You may initiate your cancellation at any time, but the cancellation will become effective at the end of your current subscription period. In order to avoid future charges, you must cancel your Subscription at least 24 hours prior to the end of your current subscription period. Subscriptions purchased through a third-party app store or platform must be cancelled through that third party.
6.3 No Refunds. EXCEPT AS OTHERWISE STATED HEREIN OR REQUIRED BY APPLICABLE LAW, YOUR SUBSCRIPTION FEE IS NONREFUNDABLE and if you cancel your subscription, you will not receive any refund and you will continue to have access to your Subscription benefits, Virtual Items, and services at least until the end of your current subscription period. We reserve the right to issue refunds, credits, or discounts at our sole discretion. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future.
6.4 Termination. We may terminate your Subscription at our sole discretion and without any notice. If we cancel your Subscription, we may give you a prorated refund based on the amount of time or Virtual Items remaining that you cannot use; provided, however, that we will not be obligated to grant you a refund if we terminate your account or your Subscription because we determine, in our sole discretion, that your actions or your use of the Service violate these Terms, any applicable law, or has harmed another user.
6.5 Changes. We may change the subscription terms or fees at any time on a going-forward basis in our discretion. If the pricing for your Subscription increases, we will notify you, and provide you an opportunity to change your Subscription before applying those changes to your account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a Subscription. Your continued use of the Service after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your Subscription. If you accept the new Subscription, its terms and conditions will apply for that renewal and all renewals going forward.
7.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Spoon grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
7.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to or derivative works of the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
7.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Spoon an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
- Ownership; Proprietary Rights. The Service is owned and operated by Spoon. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Spoon are protected by intellectual property and other laws. All Materials included in the Service are the property of Spoon or its third-party licensors. Except as expressly authorized by Spoon, you may not make use of the Materials. Spoon reserves all rights to the Materials not granted expressly in these Terms.
- Third-Party Terms
9.1 Third-Party Services and Linked Websites. Spoon may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on Spoon with an account on a third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Spoon may transfer that information to the applicable third-party service. Third-party services are not under Spoon’s control, and, to the fullest extent permitted by law, Spoon is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Spoon’s control, and Spoon is not responsible for their content.
9.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
9.3 Providing Functions from Third-party Services
a. YouTube (https://www.youtube.com/)
i. You may broadcast YouTube videos by integrating YouTube videos into live contents.
iii. You acknowledge that you are responsible for all copyright issues that might occur from simultaneously broadcasting YouTube videos.
- User Content
10.1 User Content Generally. “User Content” means any content that you submit, webcast, or otherwise transmit (collectively, “Post”) to the Service, including, without limitation, audio content (including voice), comments, messages, photos, video, images, folders, data, text, and other types of works published on the Service through features called, without limitation, LIVE, CAST, and TALK (including any third-party content included in such Posts, including, without limitation, any audiovisual works, sound recordings or musical works). You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the service.
10.2 Limited License Grant to Spoon. By posting User Content to or through the Service, you grant Spoon a worldwide, non-exclusive, irrevocable (subject to all applicable laws and Section 2 of these Terms), royalty-free, fully paid right and license (with the right to sublicense, through multiple tiers) to host, store, transfer, display, perform and communicate to the public (in each instance on a through-to-the-audience basis), reproduce, modify for the purpose of formatting for display, distribute and otherwise use and exploit your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, including in Spoon’s marketing and advertising of the Service.
10.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
10.4 User Content Representations and Warranties. Spoon disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Spoon and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Spoon, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Spoon to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be embarrassing, harassing, hateful, indecent, objectionable, pornographic, profane, threatening, or otherwise inappropriate.
10.5 You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service in compliance with the grant of rights set forth in Section 10.2. In addition, if you only own the rights in and to a sound recording or an audiovisual work, but not to the underlying musical works embodied in such sound recording or audiovisual work, then you must not Post such sound recording or audiovisual work to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Spoon under these Terms. You represent and warrant that: (a) you own the User Content posted by you on the Service or otherwise have the right to grant the license set forth in these Terms; (b) the Posting and use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your User Content; (c) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (d) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from Posting your User Content on the Service, including from Spoon’s exercise of the license set forth in Section 10.2.
10.6 Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), then you must notify your PRO of the royalty-free license you grant through these Terms to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label.
10.7 Through-To-The-Audience Rights. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted, viewed, performed, communicated or otherwise used on such external services via the Service.
10.8 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Spoon may, however, at any time and without prior notice, screen, remove, preserve, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable or inappropriate as determined by Spoon in its sole discretion. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Spoon with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Spoon does not permit copyright-infringing activities on the Service.
11.1 Text Messaging. Spoon and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. You may opt-out of receiving marketing and/or operational text messages at any time by sending an email to email@example.com indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while Spoon processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Service provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
11.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off
11.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11.4 Electronic Notifications. You consent to receive notifications from Spoon electronically and agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to it in an unchanged form. You agree to keep your contact information current.
12. Prohibited Conduct. BY ACCESSING OR USING THE SERVICE YOU AGREE NOT TO:
12.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law, including, without limitation, any anti-money laundering laws or regulations;
12.2 harass, threaten, demean, embarrass, or otherwise harm, or encourage the harm or self-harm of, any other user of the Service;
12.3 post or display hate speech, including content promoting racism, terrorism, age discrimination, gender discrimination, or content intended to insult religious beliefs;
12.4 engage in, promote, or incite violence against any individual or group, including posting or displaying images of firearms or other weapons;
12.5 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
12.6 interfere with security-related features of the Service, including by (a) disabling or circumventing features that prevent or limit use or copying of any content, or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
12.7 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
12.8 perform any fraudulent activity, including impersonating any other user of the Service, person, or entity (including impersonating Spoon employees), claiming a false affiliation, accessing any other Service account without permission, or using the Service to perform money laundering activities;
12.9 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials;
12.10 provide false identification or personal information to Spoon when making a user inquiry, or requesting a refund;
12.11 collect, store, distribute, or post any personal information or that of third parties;
12.12 solicit direct payments from other users, post-third-party payment information, or otherwise encourage other users to circumvent Spoon’s Virtual Items purchasing;
12.13 post or display overtly sexual content or pornography or link to pornographic sites;
12.14 promote or engage in gambling or gambling-related activity;
12.15 use the Service for commercial advertising or political fundraising unless approved in advance by Spoon; or
12.16 attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 12.
12.17 If you find any suspected violation of the above provisions, please immediately notify Spoon at firstname.lastname@example.org or use the “report” function in the Spoon mobile application.
13. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
13.1 Respect of Third-Party Rights. Spoon respects the intellectual property of others and takes the protection of intellectual property very seriously, and Spoon asks users to do the same. Infringing activity will not be tolerated on or through the Service.
13.2 Repeat Infringer Policy. Spoon’s intellectual property policy is to: (a) remove or disable access to material that Spoon believes in good faith, upon notice from an intellectual property rights owner or his or her agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyrights or other intellectual property rights.
13.3 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 Spoon with the user alleged to have infringed a right you own or control, and you hereby consent to Spoon making such disclosure. Your communication must include substantially the following:
a. 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;
b. identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
c. 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 Spoon to locate the material;
d. information reasonably sufficient to permit Spoon to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
e. 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
f. 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 or other applicable laws to confirm your obligations to provide a valid notice of claimed infringement.
13.4 Designated Agent Contact Information. Spoon’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via U.S. Mail:
Spoon Radio, Inc.
16F, 412, Teheran-ro, Gangnam-gu
Republic of Korea
13.5 Counter-Notification. If you receive a notification from Spoon 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 Spoon with what is called a “Counter-Notification.” To be effective, a Counter Notification must be in writing, provided to Spoon’s Designated Agent through one of the methods identified in Section 13.4 and include substantially the following information:
a. A physical or electronic signature of the subscriber;
b. 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;
c. 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
d. 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, then for any judicial district in which Spoon may be found, and that the subscriber will accept service of process from the person who provided notification under Section 13.4 above or an agent of such person.
13.6 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.
13.7 Reposting of Content Subject to Counter-Notification. If you submit a Counter Notification to Spoon in response to a Notification of Claimed Infringement, then Spoon will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Spoon will replace the removed User Content or cease disabling access to it in 10 business days, and Spoon will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Spoon’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 the Service.
13.8 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Spoon relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Spoon reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of applicable law.
13.9 Notifications to You via the Service. You hereby authorize Spoon to notify you through your public notice board on the Service of any notifications of claimed infringement received by Spoon with respect to any User Content you post to the Service or any other matter arising from your use of the Service. As such communications could embarrass you, please be sure to respect the rights of third parties and not Post any User Content unless you are confident you have the rights to such User Content. You hereby release Spoon from any liability, injury or damages that may arise from Spoon notifying you in a public manner on any matter related to your use of the Service on or through the Service.
14. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 15, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
15. Term, Termination, and Modification of the Service
15.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2
15.2 Termination. If you violate any provision of these Terms, your authorization to access the Service automatically terminates. In addition, Spoon may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by following the instructions pertaining to the deactivation process.
15.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service and, subject to applicable law, you will forfeit any Virtual Items (including Coins) associated with your Service account; (c) you must pay Spoon any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7.3, 8, 10.2, 15.3, 16, 17, 18, 19, and 20 will survive.
15.4 Modification of the Service. Spoon reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Spoon will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
16. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Spoon and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Spoon Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
17. Disclaimers; No Warranties
17.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SPOON DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SPOON DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SPOON DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
17.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SPOON ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SPOON ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
17.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Spoon does not disclaim any warranty or other right that Spoon is prohibited from disclaiming under applicable law.
18. Limitation of Liability
18.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SPOON ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SPOON ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
18.2 EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SPOON ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO SPOON FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (b) $100.
18.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Dispute Resolution and Arbitration
19.1 Generally. In the interest of resolving disputes between you and Spoon in the most expedient and cost-effective manner, and except as described in Section 19.2 and 19.3, you and Spoon agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award, except as set forth in Section 19.7. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SPOON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
19.2 Exceptions. Despite the provisions of Section 18.1 nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to (a) bring an individual action in small claims court; (b) pursue enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
19.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration and have not previously agreed to arbitration with Spoon, you may opt-out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to Spoon Radio, Inc., Attention: Legal Department – Arbitration Opt-Out, 16F, 412, Teheran-Ro, Gangnam-gu, Seoul, Republic of Korea, 06193, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt-out of arbitration (“Opt-Out Notice”). Once Spoon receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
19.4 Arbitrator. Any arbitration between you and Spoon will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Spoon.
19.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Spoon’s address for Notice is: Spoon Radio, Inc., 16F, 412, Teheran-ro, Gangnam-gu, Seoul, Republic of Korea, 06193. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Spoon may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Spoon must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Spoon in settlement of the dispute prior to the award, Spoon will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
19.6 Fees. If you commence arbitration in accordance with these Terms, Spoon will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Spoon for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, all hearings will be in the English language and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
19.7 No Class Actions or Consolidated Proceedings. YOU AND SPOON AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Spoon agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of you and only to the extent necessary to provide the relief warranted by your individual claim. Any claims for injunctive relief in favor of more than one person, the public at large, or otherwise seeking a public injunction must be brought in the state or federal courts located within San Francisco County, California.
19.8 Modifications to this Arbitration Provision. If Spoon makes any future material change to this arbitration provision after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us an Opt-Out Notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Spoon’s notice to you of such change. By rejecting any material change, you are agreeing that you will arbitrate any dispute between you and Company in accordance with the dispute resolution provision that was in effect as of the date you last accepted these Terms, as determined by the Company’s business records.
19.9 Enforceability. If Section 19.7 or the entirety of this Section 19 is found to be unenforceable, or if Spoon receives a valid Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 20.2 will govern any action arising out of or related to these Terms.
20.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. For claims and remedies that are not subject to arbitration under Section 19 above, you and Spoon submit and irrevocably consent to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
20.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into and made a part of, these Terms.
20.6 Contact Information. The Service is offered in the United States by Spoon Radio US, Inc., located at 414 Brannan Street, San Francisco, CA 94107. You may reach it by emailing us at email@example.com. You may reach Spoon Radio, Inc. by sending correspondence to 16F, 412, Teheran-Ro, Gangnam-gu, Seoul, Republic of Korea, 06193 or through the above email address.
20.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding the use of the Service.
20.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
20.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
21. Notice Regarding Apple. This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Spoon only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) 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 Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance 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 of these Terms. 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.