Terms of Service
1. PURPOSE The purpose of this Agreement is to set forth the terms and conditions under which, among other things, Earshot will license to You use of certain of Earshot’s technology, software and/or services such that (i) the Application, via Your mobile device, can identify Your location, (ii) merchants and/or businesses can, through the Application, review relevant communications You may post from time to time on Facebook, Twitter, Foursquare, Instagram and/or other social or online networks (to the extent you have opted-in to allow access to posts within a given social or online network, an “Online Network”), (iii) You can engage in private electronic communications with such merchants and/or businesses through the Application, and (iv) You can, at Your discretion, share conversation threads with others through Your various social and online networks(collectively, the “Purpose”).
2. LICENSE Earshot hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use Earshot’s software platform (the “Application”) as made available at its website located at www.earshotinc.com (the “Website”) and/or via mobile application during the Term (as defined below) solely for the Purpose. Earshot may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at Earshot’s discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application.
3. CERTAIN RESTRICTIONS You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information”): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of any acceptable use policy or other policy posted at the Website or within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. You shall defend and indemnify Earshot, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.
4. CERTAIN RESPONSIBILITIES You shall be solely responsible for: (i) all Posted Information you input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application. You acknowledge that once a message, content or any Posted Information is submitted or posted through the Application, You may not be able to withdraw or delete it.
5. EARSHOT RIGHTS Earshot shall be entitled, at its sole discretion, to: (i) remove, cancel or block any Posted Information that Earshot deems to be offensive, illegal, inaccurate, contrary to any agreement or contract or inappropriate in any way, and Earshot shall not be liable to You or any other party on account of any such decision; (ii) review all Posted Information to ensure that it complies with all applicable rules and policies; or (iii) suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your Earshot account for any reason. Notwithstanding the foregoing, Earshot shall not be required to review or monitor any Posted Information entered into or through the Application or otherwise posted by You, and You shall be solely responsible for the veracity and accuracy of all such data, content and information.
6. FEES Earshot does not currently charge its end-users to access and use the Application, however Earshot may, at any point and in its discretion, elect to begin charging fees for use of various portions of the Application and/or for different levels of subscription or account.
7. TERM AND TERMINATION This Agreement shall continue in full force until the earlier to occur of (i) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Application), or (ii) Earshot electing to terminate Your access to the Application, with or without notice (the “Term”). Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that Earshot determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, submitted any inappropriate content through the Application, breached any Earshot policy in effect from time to time or otherwise failed to perform to the standards required of Earshot, Earshot shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application and/or eliminate Your access to submit Posted Information, in each of the foregoing cases at any time and for any period of time. Earshot shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of this Agreement shall survive any termination of this Agreement.
8. INTELLECTUAL PROPERTY
(a) General Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and Earshot, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted or submitted by You; and (ii) Earshot is the sole owner of the name “Earshot” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to Earshot regarding the Application or the Website shall, upon submission to Earshot, be owned solely and exclusively by Earshot. In addition, Earshot shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user. You acknowledge and agree that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to Earshot.
(b) Use of Posted Information. In exchange for Your use of the Website and/or the Application, You hereby grant to Earshot an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any and all Posted Information You post to the Website, submit to Earshot or post through the Application and/or through Online Networks approved by You, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with Earshot performing the services described herein. You also irrevocably grant the users of the Website the right to access and review Your Posted Information in connection with their use of the Website. In addition, You acknowledge that (i) stores, restaurants, venues, merchants and/or other locations which have engaged with Earshot to utilize the Application are entitled to review all posts made from or referring to any such location through the applicable Online Network, and (ii) to the extent You elect to publicly share any conversation, dialogue or communication thread with any merchant through any Online Network, those with appropriate permissions within the applicable Online Network will be able to review such threads. Finally, You irrevocably waive, and cause to be waived, against Earshot and its users any claims and assertions of moral rights or attribution with respect to Your Posted Information. Earshot shall be entitled to display advertising and/or any other content at locations of its choosing within the Website and/or Application, including without limitation adjacent to Your Posted Information.
9. CONFIDENTIALITY; NON-SOLICITATION You agree to treat as confidential all confidential information of Earshot, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by Earshot, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of Earshot to terminate employment with Earshot or to become employed by or enter into contractual relations with any other individual or entity.
(a) No Warranties. Except as explicitly set forth herein, neither Earshot, its affiliates or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby agree and acknowledge that: (i) Earshot shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information; (ii) Earshot does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) Earshot is not responsible for any other party’s compliance with applicable laws, rules or regulations; (iv) Earshot’s services are administrative in nature and Earshot is not responsible for verifying the accuracy or veracity of any Posted Information; (v) Earshot shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party’s intellectual property rights; and (vi) the Application and/or Website may not function properly or as intended at times.
(b) Unavailability of Website or Application. You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is Earshot’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of Earshot, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, Earshot shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT EARSHOT SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
11. LIMITATION ON LIABILITY EARSHOT SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, EARSHOT’S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
12. FORCE MAJEURE Earshot shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
13. GENERAL TERMS The following terms and conditions govern general use of the Website:
(a) You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 13. Earshot reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content Earshot deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While Earshot reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.
- a. Permitted Uses. You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that You follows the rules in this Agreement. You may not use the Website or Application to promote another business or commercial venture, except to the extent Earshot elects to offer business accounts or subscriptions and you take all actions necessary to subscribe.
- b. Distribution. Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
- c. Derivative Works. You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.
- e. Infringement. You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Earshot or any third party.
- f. Information Distribution. You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
- is false;
- contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
- includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements;
- You are restricted from using under any law;
- infringes upon the intellectual property rights of any third party; or
- contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
- g. Other Prohibited Uses. You may not use the Website or Application for any purpose that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates Earshot’s rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
- invades any person’s or entity’s privacy or other rights;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of Earshot, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
- could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
- h. Others’ Personal Information. You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
- i. Harm to Minors. You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors in any way.
- j. Solicitation. You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
(b) The Website, the Application and the Website and Application content contains and/or provides access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website or Application (“Third Party Content”) that may include content You finds to be offensive, indecent or objectionable. The third party from whom any such Third Party Content originates is solely responsible for it and Earshot assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, Earshot has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless Earshot expressly states in writing to the contrary, Earshot neither endorses nor adopts as its belief any such statements. Earshot may provide information in articles Earshot posts or links to through the Website only for educational and general informational purposes and not as professional advice. Earshot has made no attempt to verify any information contained in any such articles.
(c) As a convenience to You and other Website visitors, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with Earshot. When You uses these links, You will leave the Website and Earshot will have no ability to protect Your interests. You visit linked websites at Your own risk and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. Earshot is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that You claim has been infringed;
- a description of where the material that You claim is infringing is located on the Website or within the Application;
- Your address, telephone number and email address;
- a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent or the law;
- a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which Earshot has disabled access, Earshot may forward a copy of a valid Notice including name and email address to such individual or entity. Earshot’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Darren Green, Esq.
15. APPLE-ENABLED SOFTWARE APPLICATIONS Earshot offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to software or mobile applications that are made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
- Earshot and you acknowledge that this Agreement is concluded between Earshot and you only, and not with Apple, and that as between Earshot and Apple, Earshot, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Earshot’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Earshot and you acknowledge that Earshot, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Earshot and Apple, Earshot, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Earshot by email to following address: email@example.com
- Earshot and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Section 15 with respect to the Apple-Enable Software, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple-Enable Software as a third party beneficiary thereof.
16. SOCIAL MEDIA To use the Application and/or other services described herein (collectively, the “Services”), you may be required to enable or log in to the Services via certain online third party services and/or Online Networks, such as Facebook or Twitter. To this end, Earshot may ask You to authenticate, register for or log into those Online Platforms with respect to which You provide permission for Earshot to integrate into Your use of the Services. As part of such integration, such Online Networks will provide Earshot with access to certain information that You have provided to the applicable Online Network, and Earshot will use such information as necessary to perform the Services. You hereby agree and acknowledge that the manner in which each Online Network uses, discloses and stores Your information is governed solely and exclusively by the policies of each such Online Network and Earshot shall have no responsibility or liability for the privacy practices or other actions of any such Online Network.
17. MISCELLANEOUS Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement, the Website and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Cook County, Illinois. You hereby consent to exclusive jurisdiction in Cook County, Illinois, and agree not to raise any defense of forum non conviens or any similar defense. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by You without Earshot’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.