The Parties. This software application (the “Application”) is provided by OVAZE LLC (“OVAZE”) (the “Company”).
The term “you” (including, but not limited to, formatives thereof, such as “your”, and “yours”) means you, the person accessing or reviewing this document, as well as any persons accessing or using the Application under your control, supervision, equipment, connection and/or authority. The term “Application” includes but is not limited to all functionality arising from or related to the Application, such as, but not limited to, social media posts, communications, electronic mail, messaging and/or status updating.
General Usage of the Application. You represent and warrant that: (i) you guarantee the proper and lawful usage arising from, related to or through the Application; (ii) you shall indemnify and hold OVAZE harmless, including attorneys’ fees and costs, in the event that the Application is used in any unauthorized manner; (iii) you shall not bypass or otherwise attempt to bypass any restrictions or passwords associated with the Application or content accessed or used by or through the Application; (iv) the Application shall be used only for lawful purposes, and it shall not be used as a means to commit or attempt to commit a crime, tort, invasion of privacy, harassment, breach of contract or other unlawful activity; (v) you are at least thirteen (13) years of age; (vi) you are permitted to have access to materials that may be considered offensive, violent, inappropriate or adult in nature, and you hereby agree to indemnify and hold OVAZE harmless for such access; (vii) you are solely responsible for all hardware and software necessary for your access the Application; (viii) any available disk space provided or used by OVAZE (“Disk Space”), whether for storage of electronic mail, data, computer software, other executable-related or data files, or otherwise, shall not be used to store valuable, confidential or otherwise important information and you agree to keep backup/archive copies of any information stored in the Disk Space; and (ix) the Application shall not be used, directly or indirectly, for the purpose of “spamming” or otherwise sending unsolicited mass transmissions or multiple postings in a manner which, in OVAZE's sole discretion, is abusive, offensive, and inappropriate; (x) you are solely responsible full compliance with all applicable statutes, regulations, ordinances and other laws that govern the direct, indirect or downstream use or intended use of the Application. Without limiting the generality of the foregoing, in connection with your use of the Application, you agree you will not:
a) Transmit any message, information, data, text, software or images, or other content (“Material”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable that may invade another's right of privacy or publicity;
b) Impersonate any person or entity, including but not limited to, a OVAZE official, forum leader, guide or host or falsely state or otherwise misrepresent your affiliation with a person or entity;
c) Post or transmit any Material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
d) Post or transmit any Material that contains a virus, harmful or corrupted data;
e) Delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
f) Use the Application's communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text);
g) Post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam", "chain letters," "pyramid schemes" or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
h) Violate any applicable local, state, national or international law;
i) Upload or transmit any Material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; or
j) Delete or revise any Material posted by any other person or entity.
At all times, in all cases, with or without cause, and/or with or without a violation of these or any applicable terms and conditions of use, for any reason, in OVAZE’s sole and absolute discretion to suspend usage, delete information, terminate account access or otherwise delete any information arising from or related to usage of the Application.
OVAZE reserves the right to refuse to publish, post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or are believed to be in violation hereof. You hereby authorize OVAZE, and hereby appoint OVAZE, as your attorney-in-fact to take any action necessary or appropriate to comply with any statutes, regulations, ordinances or other laws, user policies and/or industry-standard organizational or governing bodies, including, but not limited to the ICANN and its successor(s), and hereby release OVAZE from liability for any such acts. Except for certain products and services for which OVAZE is expressly and specifically identified by OVAZE as being itself the author, manufacturer, or authorized representative, all merchandise, content, information and services offered or made available or accessible on the Internet or use of the Application are so offered or made available or accessible by third parties who are not affiliated with OVAZE or its affiliates (“Third-Party Materials”). OVAZE makes no endorsements, representations and/or warranties regarding Third-Party Materials. You understand that the Internet contains materials which may be considered to be sexually explicit and/or may be extremely offensive (“Explicit and Offensive Materials”). YOU GUARANTEE AND AGREE THAT YOUR ACCESS TO EXPLICIT AND OFFENSIVE MATERIALS IS AT YOUR OWN RISK. You are solely responsible to “block” or otherwise prevent inappropriate access or content.
As a general rule, other than administrative content, OVAZE does not publish the content that you access through the Application, but only provides linking access to Third-Party Materials content, edited and controlled by third parties; however, OVAZE reserves the right to create its own content in its discretion. Any problems or issues with the Third-Party Materials shall be directed exclusively to the service providing such Third-Party Materials.
UNDER NO CIRCUMSTANCES SHALL OVAZE, OR ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY ARISING FROM, RELATED TO OR IN CONNECTION WITH THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, FROM YOUR USE OF OR INABILITY TO USE THE APPLICATION OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE APPLICATION, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. YOU HEREBY INDEMNIFY OVAZE, ITS EMPLOYEES, AGENTS, REPRESENTATIVES AND AFFILIATES FROM AND AGAINST ALL ACTIONS, CLAIMS, SUITS, DEMANDS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF THE APPLICATION AND/OR ACCESS TO THE INTERNET.
IN NO EVENT SHALL OVAZE’S MAXIMUM LIABILITY EXCEED ANY FEE ACTUALLY PAID BY YOU FOR THIRTY (30) DAYS OF USE OF AND ACCESS TO THE APPLICATION. NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE TO PERFORM ANY OBLIGATIONS DUE TO CAUSES WHICH ARE BEYOND THEIR CONTROL AND OF A NATURE WHICH NEITHER HAS THE AUTHORITY OR POWER TO REMEDY.
THE ABOVE GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. FURTHER-MORE, SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
No Endorsement; No Opinion of Quality; No Human Vetting by OVAZE. Reference herein to any customer, specific or general commercial products, process whatsoever, or any of the foregoing by trade name, trademark, manufacturer, or otherwise, does not constitute or imply endorsement, recommendation, or preference by OVAZE. Any views, statements and opinions expressed herein, by OVAZE or users of the Application, do not necessarily state or reflect those of the OVAZE, and shall not be used for advertising or product endorsement purposes. You consent to monitoring of this use by system or security personnel.
The Application includes, but is not limited to, one or more newsfeeds, a media ranking area, a search facility, and a priority or new released area. The Application may link to other media-related services, including, but not limited to, Spotify and iTunes/Apple music accounts. Newsfeeds or “feeds” may include links to music content from outside resources that OVAZE determines to post in the Application; in such cases, the actual content is referenced externally and the content does not exist in the Application. Notwithstanding anything to the contrary or as aforesaid, the Application may cache or otherwise temporarily store content for speed of access, offline viewing or other purposes.
AS MORE FULLY SET FORTH ABOVE, OVAZE ONLY IS RESPONSIBLE FOR OVAZE-BRANDED CONTENT AND SERVICES, BUT NOT THIRD-PARTY MATERIALS OR CONTENT. ACCORDINGLY, LINKS TO EXTERNAL SOURCES IS NOT AN ENDORSEMENT OF THAT CONTENT. MOREOVER, OVAZE IS NOT AFFILIATED WITH ANY OTHER NON-OVAZE-BRANDED COMPANY, SUCH AS SPOTIFY, ITUNES, FACEBOOK, ETC.
YOU AGREE TO BE SOLELY PERSONALLY RESPONSIBLE FOR INDEPENDENTLY VETTING AND OTHERWISE INDEPENDENTLY CONFIRMING THE PERSONAL INTEGRITY, PERSONAL CHARACTER AND OTHER PERSONAL ATTRIBUTES OF ANY PERSON TO WHOM YOU ARE INTRODUCED OR BECOME FAMILIAR ARISING FROM, RELATED TO OR IN CONNECTION WITH THE APPLICATION. FURTHERMORE, WITHOUT LIMITING THE DISCLAIMERS OF LIABILITY SET FORTH ABOVE, YOU AGREE AND ACKNOWLEDGE THAT OVAZE IS ONLY AN AUTOMATED TOOL AVAILABLE FOR YOUR CONSIDERATION TO USE, BUT OVAZE IS NOT RESPONSIBLE TO QUALIFY SUCH PERSONS PRIOR TO YOUR CONTACT WITH ANY OF THEM. YOU AGREE TO INDEMNIFY AND HOLD OVAZE HARMLESS FROM ANY CLAIM THAT OVAZE IS RESPONSIBLE FOR THE RESULT OF ANY CONTACT WITH SUCH PERSON. YOU AGREE NOT PHYSICALLY TO MEET WITH ANY SUCH PERSON ALONE, BUT ONLY WITH SUFFICIENT OTHER PERSONS WITH WHOM YOU HAVE AND CAN PERSONALLY ATTEST TO THEIR INTEGRITY, CHARACTER AND OTHER PERSONAL ATTRIBUTES. YOU AGREE THAT YOU, ALONE, ARE RESPONSIBLE TO ENSURE THAT YOU HAVE IMPLEMENTED SUFFICIENT SAFETY MECHANISMS TO ENSURE SAFETY.
YOU AGREE THAT YOU WILL NOT USE THE APPLICATION OR ANY COMMUNICATIONS ARISING FROM, RELATED TO OR IN CONNECTION WITH THE APPLICATION, TO FURTHER CONTACTS WITH OR INCLUDING ANYONE WHO YOU REASONABLY KNOW OR SHOULD KNOW: i) PRESENTS A THREAT OR DANGER TO ANOTHER PERSON OR A PERSON’S PROPERTY; ii) HAS ANY HISTORY OF CRIMINAL ACTIVITY; iii) HAS COMMITTED A FELONY, iv) IS LESS THAN THIRTEEN (13) YEARS OF AGE; OR v) ACTS OR HAS HISTORICALLY ACTED IN ANY MANNER NOT LAWFUL OR IS OTHERWISE DANGEROUS, HARASSING, THREATENING OR OTHERWISE ANTI-SOCIAL. YOU UNDERSTAND THAT THE APPLICATION COLLECTS REAL-TIME AND HISTORICAL LOCATION AND/OR GPS DATA, INCLUDING YOUR PROFILE INFORMATION, WHICH IS PUBLISHED TO OTHERS; OVAZE DOES NOT GUARANTEE THAT DATA WILL BE PUBLISHED ONLY TO YOUR SPECIFIC SOCIAL MEDIA OR CONTACT LIST.
Without limiting the foregoing, any comments, data, information or materials sent to OVAZE arising from your use of the Application may be used without liability and for any purpose without compensation or attribution to you or the sender. OVAZE may reproduce, sublicense, transfer, use, disclose, exhibit, display, transform, create derivative works and distribute such content or materials to others without limitation; this includes but is not limited to any information (including, without limitation, ideas contained therein for new or improved products and services) you submit to or through the Application (including, but not limited to, posts, forums and newsgroups) or by electronic mail and communications by all means and in any media now known or hereafter developed. You also grant to OVAZE the right to use your name and likeness in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse for any alleged or actual infringement or misappropriation of any proprietary right in your communications to the Application.
You agree that OVAZE has the right to monitor your use of the Application electronically and to disclose any information as necessary to satisfy any law, regulation or other governmental request (including, but not limited to, whether informal requests of authorities, or formal requests, such as legal process, subpoena, search warrant or court order), to operate the system properly, to protect itself or its subscribers, members, or otherwise. You shall indemnify and hold OVAZE harmless from such monitoring and disclosure.
Collected Data. The Application collects information and data from you (“Collected Data”). Some of which Collected Data may or does contain Personally Identifiable Information (“PII”). Some of which Collected Data may or does contain usage data (“Usage Data”). And, some of which Collected Data may or does contain security and account data (“Account Data”). We collect this data in part to keep track of each users account and to be able to identify issues and performance of our application. Use of the term “Collected Data” includes, but is not limited to, PII, Usage Data and Account Data.
We collect the content, communications and other information you provide when you use the Application, including when you sign up for an account, create or engage with content, and associate with music platforms. This can include information in or about the content you provide (like metadata). Our application collects content and communications from users and processes it for the purposes described below.
Networks and Connections
We collect information about the music and platforms you are connected to and how you interact with them across our Application.
We collect information about how you use our Application, such as the types of content you view or engage with; the features you use; the actions you take; the music and platforms you interact with; and the time, frequency and duration of your activities. This allows us to evaluate which aspects of our app are receiving the most use and how to further tailor the app to our users. We also collect information on how you use other applications in unison with ours, such as Spotify and Apple Music, or other applications you may use while using ours.
Device Information. As described below, we collect information from and about the computers, phones, and other web-connected devices you use that integrate with our Application, and we combine this information across different devices you use. This information collectively helps us to understand the performance of our app considering the different devices, connections, providers, and applications the user is utilizing while using our application.
Information we obtain from these devices includes:
Device attributes: information such as the operating system, hardware and software versions, battery level, signal strength, degree of the device, available storage space, browser type, app and file names and types, and plugins.
Device operations: information about operations and behaviors performed on the device, such as whether a window is foregrounded or backgrounded, swiping or touching the screen, or mouse movements (which can help distinguish humans from bots).
Identifiers: unique identifiers, device IDs, and other identifiers, such as from games, apps or accounts you use, and Family Device IDs
Device signals: Bluetooth signals, and information about nearby Wi-Fi access points, beacons, and cell towers.
Data from device settings: information you allow us to receive through device settings you turn on, such as push notifications
Network and connections: information such as the name of your mobile operator or ISP, language, time zone, mobile phone number, IP address, and connection speed
Cookie data: data from cookies stored on your device, including cookie IDs and settings.
ALL COLLECTED DATA IS AVAILABLE TO BEING SOLD, ACCESSED, LICENSED, DISTRIBUTED, ASSIGNED OR TRANSFERRED, ALL OR IN PART, TO THIRD PARTIES BY OVAZE OR ITS TRANSFEREES, WITHOUT COMPENSATION OR REPORTING TO YOU, UPON TERMS NO LESS PRIVATE THAN STATED IN THIS DOCUMENT.
The Application collects as Collected Data, your name, location, and other contact and profile information, so that OVAZE and/or the Application can identify you and apply demographic analyses to your personal profile for rendering services by the Application or otherwise by OVAZE, which also includes the purpose of advertising by OVAZE and third parties. The Application collects as Collected Data your log in security information, and account profile information for the purpose of individualizing services in accordance with your account profile. The Application collects as Collected Data statistical and usage data relating to your specific and general activities in using the Application, including usage of and other Third-Party Materials applications, in order to individualize services provided by the Application, as well as demographic and usage data acquisition and assessments for advertising purposes and to augment, evaluate and to modify the Application.
In addition to Collected Data that you provide, the Application will also automatically create information and may store information on your devices or OVAZE cloud servers as Collected Data, with or without prompting you. For example, the Application stores tracking data, cookies, and other data and metadata that contains information regarding your general and specific usage of the Application and activities using the Application. This Collected Data is necessary or appropriate for technical framework purposes, as well as for the purposes set forth above for usage, demographic, technical, advertising and Application augmentation. Collected Data includes location, physical tracking and GPS data for the purpose of tracking your respective location or locations and matching to others.
The Application accesses a number of third-party services' accounts, with which OVAZE and/or the Application may have affiliations for connectivity, augmented social media experiences and for advertising purposes regarding which Collected Data is conveyed by affiliation. This includes or may include iTunes/Apple music and Spotify. You understand that OVAZE also uses Collected Information for its own advertising purposes, including email communications with you.
DELETING OR REQUESTING THE DELETION OF YOUR ACCOUNT IS NEITHER THE SAME AS DELETING COLLECTED DATA NOR IS IT EVEN THE SAME AS DELETING ACCOUNT DATA. YOUR “ACCOUNT,” AS SUCH, IS YOUR PUBLIC PROFILE AND SPECIFIC MEMBERSHIP CONTACT INFORMATION AS USED BY YOU AND THE OTHER MEMBERS OF THE APPLICATION FOR APPLICATION PURPOSES. DELETING YOUR ACCOUNT DOES NOT DELETE ALL COLLECTED DATA OR EVEN DELETE ALL ACCOUNT DATA.
WITHDRAWAL OF YOUR CONSENT OR ACCOUNT DELETION IS PROSPECTIVE ONLY. DELETING AN ACCOUNT, AS SUCH, WILL MAKE YOUR ACCOUNT PROFILE INACCESSIBLE PROSPECTIVELY TO YOURSELF AND OTHER USERS OF THE APPLICATION BUT SOME OR ALL HISTORICAL COLLECTED DATA WILL BE RETAINED, WHETHER OR NOT RELATED TO YOUR IDENTITY OR OTHERWISE DISCRETELY ACCESSIBLE BY OVAZE.
THE APPLICATION HAS VARIOUS DEGREES OF FUNCTIONALITY FOR WITHDRAWAL OF CONSENT FOR PROSPECTIVE USAGE OF THE APPLICATION, AND DELETION OF YOUR ACCOUNT, BUT COLLECTED DATA, INCLUDING ACCOUNT DATA, MAY STILL EXIST IN SOME FORM WITHIN THE DATABASES OF OVAZE, WHICH MIGHT NOT BE REASONABLY IDENTIFIABLE OR ACCESSIBLE TO SUPPORT STAFF. ALSO, SUCH COLLECTED DATA MAY ALSO HAVE ALREADY BEEN SOLD, LICENSED, DISTRIBUTED, ASSIGNED OR TRANSFERRED, ALL OR IN PART TO THIRD PARTIES.
OVAZE DOES NOT GUARANTEE THAT HISTORICAL USAGE CASCADED TO OTHER USERS, OR OTHERWISE COMMUNICATED OR REPLICATED BY THE APPLICATION ANYWHERE OR THROUGHOUT THE APPLICATION USER POPULATION, WILL BE ELIMINATED. UPON ACCOUNT DELETION, YOU UNDERSTAND THAT, ON THE ONE HAND, ALL OF YOUR SOCIAL MEDIA CONTENT, CONTACTS AND PROFILE INFORMATION MAY BE FOREVER INACCESSIBLE TO YOU OR OTHERS, BUT, ON THE OTHER HAND, THE EFFECTS OF THE HISTORICAL REPLICATION OF THAT INFORMATION MAY STILL APPEAR ELSEWHERE IN THE APPLICATION OR OTHERWISE FOR OTHERS OR CONTINUE TO BE USED BY THIRD PARTIES. ALSO, COLLECTED DATA WILL STILL BE RETAINED AND USED BY OVAZE, AND THE DELETION OF YOUR ACCOUNT DOES NOT CHANGE OVAZE’S RIGHTS REGARDING THE COLLECTED DATA THAT IT HAD PRIOR TO SUCH ACCOUNT DELETION.
We do not knowingly collect or use information of those under the age of 13. If we discover that someone under the age of 13 is using the app, or that we have mistakenly collected information of someone under this age, we will delete their information as fast as possible. If you believe we have mistakenly collected data of someone under this age, please contact us through the link under the settings tab in our app and we will resolve the issue.
This document and all issues arising from or related to your use of the Application shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania applicable to agreements made and to be performed in Pennsylvania. You agree that any legal action or proceeding between OVAZE and/or you for any purpose concerning this document or your use of, or access to, the Application, or the rights/obligations hereunder, shall be brought exclusively in the county of Allegheny, Pennsylvania.
Any cause of action or claim you may have with respect to the Application must be commenced within one (1) year after the claim or cause of action arises, or such claims or cause of action shall be barred. OVAZE's failure to insist upon or enforce strict performance of any provision of this document shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision hereof. OVAZE may assign its rights and duties hereunder to any party at any time without notice to you. Any rights not expressly granted herein are reserved. If any term or provision of this document is found to be illegal or unenforceable then, notwithstanding same, this document shall remain in full force and effect, and such term or provision shall be deemed stricken or reframed to the fullest extent necessary to preserve the intention of the document as is determined from the existence of such term or provision.
At the option of the Company, any and all disputes arising from, related to or in connection with this document with an averred claim amount exceeding ten thousand dollars ($10,000): i) shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; ii) if the averred claim is less than twenty thousand dollars ($20,000) there shall be one (1) arbitrator; otherwise there shall be three (3) arbitrators; iii) the arbitrator(s) shall be appointed in accordance the AAA Commercial Rules from a AAA panel of arbitrators knowledgeable in business information and data processing systems; and iv) the Arbitrator(s) shall have no authority to award punitive or exemplary damages but may award temporary or permanent equitable relief. All disputes required to be resolved by binding arbitration shall be considered private and confidential and neither party shall issue press releases or otherwise disclose information regarding the same; provided, that a party may publicly respond to any prior disclosure made by the other party in breach of this provision.
“APPLICATIONS FOR LINKING, UNIFYING AND FOR INDEXING DISPARATE DIGITAL LIBRARIES FROM ONLINE COMPUTER SOFTWARE APPLICATIONS INTO ONE POINT OF REFERENCE”