This agreement was most recently updated on January 10th, 2016.
Welcome to the Hearnow.com Site, which is located at www.hearnow.com (the "Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Site and Hear Now Service (as defined below). Purchase of any product or service on the Site constitutes your agreement to and acceptance of all the TOS. These TOS do not alter the terms or conditions of any other agreement you may have with us for products, services or otherwise. If you use the Site on behalf of any entity, you represent and warrant that you are authorized to accept these TOS on such entity's behalf and that such entity will be responsible to us if you or anyone else from that entity violate these TOS.
Hear Now (a division of Audio & Video Labs, Inc., along with our licensees and assignees referred in this Agreement as "us" and "we" and "Hear Now") reserves the right to add to, delete or change these TOS at any time in our sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to the Site and you waive any right you may have to receive specific notice of such changes or modifications. As such, you should check these TOS from time to time for such changes to understand the terms and conditions that apply to your use of the Hear Now Service. If you do not agree to the amended terms, you must stop using the Hear Now Service and you should arrange to cancel your account or subscription with us. Any use of the Site or the Hear Now Service in violation of these TOS may result in, among other things, termination or suspension of your right to use the Site or the Hear Now Service.
The Hear Now Service. Hear Now provides website hosting and website development applications through the Site (all such services, collectively, the "Hear Now Service"). Hear Now users may create and host websites through the Site.
Use of the Site and Hear Now Service.
Eligibility. Hear Now will only knowingly provide the Hear Now Service to persons or entities that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Hear Now Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Hear Now Service is not intended for children under the age of 13.
Compliance With TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Hear Now Service and the Site.
Registration and Account. In order to access the Hear Now Service, you will have to create an account. You represent and warrant to Hear Now that (i) all information you submit to create your account is accurate, truthful, current and complete; (ii) you will maintain and promptly update your account information; (iii) you will maintain the security of your account by not sharing your password with others and restricting access to your account on your computer; (iv) you will promptly notify us if you discover or otherwise suspect any security breaches related to the Site and (v) you will take responsibility for all activities that occur under your account and accept all risks of unauthorized access. Hear Now will not be liable for any loss you incur due to any unauthorized use of your account.
Your License to Use the Site and the Hear Now Service.
Hear Now grants you a limited revocable license to access and use the Site and the Hear Now Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by Hear Now. If you use the Site in a manner that exceeds the scope of this license or breach these TOS, Hear Now may revoke the license granted to you.
Hear Now Content. Except for User Content (defined below), the content on this Site and on the Hear Now Service, including without limitation, the look and feel of the Site, text, software, scripts, source code, API, graphics, photos, sound, music, videos, "Hear Now," "HostBaby", "ListBaby," "CD Baby," "BookBaby," the Hear Now logos and any other product or service name or slogan contained in the Site ("Hear Now Content") are owned by or licensed by Hear Now and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, imitated or used, in whole or in part, without the prior written permission of Hear Now. Hear Now reserves all rights not expressly granted in and to the Hear Now Content, this Site and the Hear Now Service, and these TOS do not transfer ownership of any of these rights. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us. You may not use any meta tags or any other "hidden text" utilizing "Hear Now" or any other name, trademark or product or service name of Hear Now without our prior written permission.
Refund Policy. Subject to Section 2(i) below, if, for any reason, you are not satisfied with the Hear Now Service, we will offer you a full refund for your prior month's paid Hear Now Service or a pro-rated refund if you've prepaid for a year of Hear Now service. All domain registration fees are non-refundable.
Billing and Payment for services:
Rules For Use Of the Site and Hear Now Service.
Monitoring. Hear Now reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site and/or Hear Now Service. If Hear Now determines, in its sole and absolute discretion, that you or another Hear Now user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Hear Now may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
Modification of the Service. Hear Now may modify the Hear Now Service at any time with or without notice to you, and will incur no liability for doing so.
Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, communications or any other information ("Submissions"), you agree that such Submissions are non-confidential and shall become the sole property of Hear Now. Hear Now shall own exclusive rights, including intellectual property rights to any Submissions, and shall be entitled to unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
User Content. Some of the features of this Site and the Hear Now Service may allow you to view, post, publish, share, store, or manage literary, artistic, musical, or other content, including but not limited to photos and videos ("User Content"). By posting or publishing User Content to the Site or to the Hear Now Service, you represent and warrant to Hear Now that
you have all necessary rights to distribute User Content via the Site or via the Hear Now Service, either because you are the author of the User Content and have the right to distribute the same, or because you have appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and
you do not violate the rights of any third party.If you have a website hosted by Hear Now, you shall retain all of your ownership or licensed rights in User Content posted to your website. If you post or publish your content to this Site, you hereby grant to Hear Now a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site and Hear Now's businesses, including without limitation for promoting and redistributing all or part of this Site in any media format and through any media channels without restrictions of any kind and without payment or consideration of any kind, or permission or notification, to you or any third party.
Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, Hear Now has adopted a policy of terminating, in appropriate circumstances and in Hear Now's sole discretion, users who are deemed to be repeat infringers. Hear Now may also, in its sole discretion, limit access to the Site and/or terminate the accounts of any user who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
Copyright Complaints. If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Designated Agent: Legal
Full Address of Designated Agent: 9600 NE Cascades Parkway, Suite 180, Portland, OR 97220
Telephone Number of Designated Agent: 1-888-448-6369
Facsimile Number of Designated Agent: 503-296-2370
E-Mail Address of Designated Agent: [email protected]
Representations and Warranties.
Mutual Representations and Warranties. You represent and warrant to Hear Now and Hear Now represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
By You. You represent and warrant to Hear Now that, in your use of the Hear Now Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Hear Now that: (1) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions or User Content; (2) Hear Now will not be required to make any payments to any third party in connection with its use of your Submissions or User Content, except for the expenses that Hear Now incurs in providing the Hear Now Service; (3) the use of any instructions, formulae, recommendations, or the like contained in your Submissions and/or User Content will not cause injury to any third party; and (4) your Submissions and User Content do not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
Disclaimers, Exclusions, and Limitations.
DISCLAIMER OF WARRANTIES. Hear Now PROVIDES THE SITE AND Hear Now SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Hear Now DOES NOT REPRESENT OR WARRANT THAT THE SITE, Hear Now SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. Hear Now MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. WHILE Hear Now ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, Hear Now CANNOT, AND DOES NOT, REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
EXCLUSION OF DAMAGES. Hear Now WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF OR INABILITY TO USE THE Hear Now SITE OR SERVICE, BASED ON ANY CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM Hear Now, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, ACTS OF OTHER SUBSCRIBERS, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO Hear Now'S RECORDS, PROGRAMS OR SERVICES, EVEN IF Hear Now IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) ANY COMPENSATION YOU PAY, IF ANY, TO Hear Now IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
Indemnification. You will indemnify and hold Hear Now its affiliates, and each of their respective employees, contractors, service providers, consultants, representatives, agents, attorneys, directors, officers, managers, shareholders, affiliates, successors and assigns (the "Parties") harmless from any damage, cost, liability, loss, or expense (including, without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought or made against any of the Parties relating to (i) any actual or alleged breach of these TOS or any other Hear Now agreement, policy or guideline, (ii) any actual or alleged violation of applicable laws, rules or regulations, (iii) your wrongful or improper use of the Site or Hear Now Service, (iv) any Submission, and all User Content or transaction submitted by you, or (v) your violation of the rights of any third party. If you have to indemnify Hear Now under this Section, Hear Now will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Hear Now's express written permission.
Termination. Notwithstanding any of the TOS, Hear Now reserves the right, without notice and in its sole discretion, to suspend or terminate your use of the Site or Hear Now Service, and to block or your future access to and use of the Site and Hear Now Service.
Survival. These TOS will survive indefinitely unless and until Hear Now chooses to terminate them.
Effect of Termination. If you or Hear Now terminates your use of the Site or the Hear Now Service, Hear Now may delete, upon reasonable notice to you, your website, any User Content, any Submissions or other materials relating to your use of the Hear Now Service on Hear Now's servers or otherwise in its possession and Hear Now will have no liability to you or any third party for doing so.
Notice. All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) express courier, or (iii) electronic mail. If you give notice to Hear Now, you must use the following address: Hear Now, 9600 NE Cascades Parkway, Suite 180, Portland, OR 97220. If Hear Now provides notice to you, Hear Now will use the contact information provided by you to Hear Now. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by express courier, on the date the notice is guaranteed for delivery by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non- delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication by Hear Now to you will satisfy this requirement.
Dispute Resolution. All disputes arising out of, relating to or connected with these TOS or your use of any part of the Hear Now Service will be exclusively resolved under confidential binding arbitration held in Multnomah County, Oregon before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Oregon law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Multnomah County, Oregon, and each party hereby irrevocably submits to the personal jurisdiction of such court. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the Hear Now Service must be asserted individually.
Miscellaneous. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Oregon without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Hear Now. These TOS (including all of the policies, terms and conditions governing the Site and your use and access to the Hear Now Service, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Hear Now are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.