As of August 1st, 2012
By using www.vocalreferences.com (the 'Site') or any of our mobile or desktop application services (described below), you agree to abide by and be bound by these Terms of Service (the 'TOS'). Any updates, new services or any modifications of an existing service will be governed by the TOS, which may be modified or updated from time to time in our sole discretion. The continued use of the Site or Services following the posting of changes to the TOS constitutes your acceptance to such changes. We strongly encourage you to regularly review this TOS. If you do not agree to abide by these or any future TOS, do not use or access (or continue to use or access) the Service.
The Site and Services are operated by Local Hits Media, LLC., 93 S. Jackson St. Seattle WA 98104 ('LHM' or 'we').
The most important ground rule is keep your content (video, audio and/or text) clean and appropriate for a general audience of all ages. This means the following:
* Do not upload content that may be copyrighted where you haven not obtained the explicit permission to use it.
* Do not upload content with sexually explicit or strongly sexually suggestive material.
* Do not upload content with nudity or partial nudity.
* Do not upload content with hate or abusive speech against any individual or group
* Do not upload content with excessive profanity.
* Do not upload content with graphic violence.
* Do not upload content with drugs or drug use.
* Do not upload content depicting cruelty to animals.
* Do not upload content that may put that minors at risk or exploits them in a negative or harmful manner.
* Do not upload content that promotes and encourages an illegal or dangerous activity.
* Do not upload content promoting eating disorders.
* Do not upload content with misleading or inaccurate metadata including video thumbs, titles, tags, and category. This abuse leads to a bad user experience on the site.
LHM provides, for your commercial use, the Vocal References mobile app which enables you to capture, display, sync and share your customer references ('Service'). The Service enables you to create, submit and share content, information, data, text, photographs, graphics, video, messages or other material ('Your Content') from your mobile device and from our website (www.vocalreferences.com).
LHM reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that LHM will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
The Service includes certain services that are available via a mobile device, including:
(i) the ability to upload content to the Service via a mobile device,
(ii) the ability to browse the Service from a mobile device and
(iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the 'Mobile Services').
To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you understand that certain information about your usage of the Mobile Services may be communicated to us.
If you are under 13 years of age, you are not authorized to use the Service, with or without registering. If you are between the age of 13 and 18, you must obtain permission from your parent or guardian to use the Service and you must have a parent assist in the completion of registration. In addition, if you are between the age of 13 and 18, you represent that you possess legal parental or guardian consent to use the Service.
You are solely responsible for any and all activities that occur under your account and ensuring that you exit or log-off from your account at the end of each session of use. Your password is confidential and you will not communicate it to any third-party individual or website. You will notify LHM immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You will be liable for all actions taken with your password as well as for any loss or liability as a result of such use. LHM will not be responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by LHM, or any transactions entered into through the Service or failure to abide by this TOS.
You acknowledge that LHM may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on LHM's servers on your behalf. You agree that LHM has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that LHM reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that LHM reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
You acknowledge that creating, submitting or sharing your User Content may give rise to various types of legal liabilities and you represent that your User Content (whether or nor you are the author of such content) complies at all times (both when first submitted and throughout its accessibility on the Service) with the TOS and all applicable laws. You understand that LHM may not pre-screen User Content and is not liable for the content (including User Content) transmitted by users. You agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Service, except as provided under these TOS, and you agree to take all reasonable steps to prevent the unauthorized use of the Service.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet ('Third-Party Sites'). LHM has no control over Third-Party Sites or other Internet resources. These resources, content and services are provided to you 'as is' to facilitate your web browsing. LHM does not endorse any Third-Party Sites. LHM is providing these links to you only as a matter of convenience, and in no event will LHM be responsible for any content, products, or other materials on or available from such Third-Party Sites.
In your use of the Service, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. LHM will have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. LHM reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
In addition, LHM is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third party services. As such, LHM is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party service. LHM enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
You may post and share Your Content through the Service. When posting Your Content it is your responsibility to clearly and truly identify its nature to ensure its classification in the proper category. This is necessary for the respectful operation of the Service and in order to protect other users by identifying content that may be inappropriate. You acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against LHM relating thereto.
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
You are solely responsible for User Content that you stream, upload, post, publish or display (hereinafter, 'transmit') or email or otherwise transmit or use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by LHM. LHM reserves the right to investigate and take appropriate legal action against anyone who, in LHM's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. As a condition for accessing and using the Service, you agree not to use the Service to:
Transmit any content that:
(a) is unlawful, obscene, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, or hateful or that contains objects or symbols of hate, invades the privacy of any third party, or is otherwise objectionable;
(b) poses or creates a privacy or security risk to any person;
(c) constitutes any unsolicited or unauthorized advertising, 'junk mail', 'spam', 'chain letters', 'pyramid schemes, 'contests' or 'sweepstakes';
Harass any other user of the Service or to impersonate another person or entity by any means including by using her/his email address and password, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Violate any applicable local, state, national or international law, or any regulations having the force of law;
Transmit or make available any content that you do not have the lawful right to transmit (including any content that would violate any confidentiality or fiduciary obligations you might have), that would infringe the intellectual or proprietary rights of any third party (including, but not limited to, copyright, trademark, service mark or patent rights), or that would violate the right of privacy or publicity of any public or non-public persons;
Engage in any conduct or transmit any content that would interrupt, destroy, limit or more generally harm the Site and/or the Service or enable you to gain unauthorized access to the Site, including by using viruses, malicious computer code, programs or files;
Reproduce, copy, sell, or commercially use (including the right to access) in whole or in part, the Service; Solicit personal information from anyone under the age of 18;
Harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
In case of any violation of the above, LHM reserves the right to cancel or rename your account and/or to block you from accessing the Service as well as to disclose any information as necessary to satisfy any law, regulation or governmental request, at its sole discretion. LHM also reserves the right to block the distribution of User Content through the Service.
You may terminate your account at any time. In the case of violation of the TOS, we reserve the right to limit your access to the Service or terminate your account. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that LHM may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. You understand and accept that we will not be held liable for the cancellation of your account.
Any reproduction, display, publication, transmission or, more generally, any unauthorized use of the Service may trigger your liability and result in criminal or civil legal action. You agree not to access the Service by any means other than those made available to you by LHM. You acknowledge and agree that the Service may contain content ('Service Content') that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of LHM, our affiliates and our partners (the 'Software'). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by LHM. The use of the content of other users of the Service may only be done in compliance with the authorization or license granted by the respective rights holders.
The Service is protected by intellectual property laws and international conventions. The Service structure and the Service Content may be protected by copyright or other intellectual property rights. No material from the Service may be modified, copied, reproduced, re-published, uploaded, posted, broadcasted, publicly performed, transmitted, re-transmitted or distributed in any way, except as expressly permitted through the Service. Any such use is strictly prohibited and will constitute an infringement of the copyright and other intellectual property rights of LHM or, in the case of material licensed to LHM, the owner of such materials. You agree not to delete, change or modify in any way the copyright notices or trade marks contained on the Service.
Any LHM trademark or logo and all other Vocal References trademarks are owned by LHM (the 'LHM Trademarks'). You agree not to use the LHM Trademarks without our written consent. Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to LHM. Nothing in this TOS or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of LHM Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of LHM Trademarks will inure to our exclusive benefit.
Under no circumstances will LHM be liable in any way for any content posted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted via the Service. You acknowledge that LHM may not pre-screen content, but that LHM and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, LHM and its designees will have the right to remove any content that violates these TOS or is deemed by LHM, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
You are solely responsible for the content and other materials you post on or through the Service or transmit to or share with other users or recipients, including User Content. You will not transmit any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By transmitting any User Content you hereby grant and will grant LHM and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable (through multiple tiers), perpetual, irrevocable license to reproduce, copy, create derivative works of, display, transmit, perform, distribute, cache, store, resell, market, promote, modify and otherwise fully use and exploit your User Content in any way (including but not limited to for redistributing part or all of the Service and or derivative works thereof in any format or channel, for commercial purposes or otherwise), in any form, medium or technology now known or later developed, without compensation or acknowledgement to you. You hereby waive any claims you may have based on any usage of User Content or the works derived therefrom including but not limited to claims for invasion of privacy, publicity or libel. To the extent allowed by law, any license you grant LHM hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be referred to as 'moral rights', 'artist's rights', 'droit moral,' or the like. Furthermore, you agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, LHM may and is hereby authorized to (and to allow others to) use your image in connection with your User Content. To the extent any of the foregoing is ineffective under applicable law, you hereby provide all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible. If any other person appears in your User Content, you represent and warrant that you have obtained the foregoing ratifications, consents and authorizations from such person for LHM's benefit.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ('Submissions'), provided by you to LHM are non-confidential and LHM will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that LHM may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of LHM, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The use of the Service is both free and paid. In addition, some third parties may decide to charge a fee for accessing their content in whole or in part. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide LHM information regarding your credit card or other payment instrument. You represent and warrant to LHM that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay LHM the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize LHM to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let LHM know within sixty (60) days after the date that LHM invoices you. We reserve the right to change LHM's prices. If LHM does change prices, LHM will provide notice of the change on the Service or in email to you, at LHM's option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
You agree to release, indemnify and hold LHM and its parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs), rights and actions of any kind and injury arising out of or in connection with your use of the Service (including Your Content), your violation of the rights of another or breach of this TOS. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
LHM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. LHM DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, (V) THE SOFTWARE, SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN 'AS IS' BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LHM.
You understand that you are accessing and using the Service at your own risk. LHM may not be held liable for your reliance on any information or data you may have accessed, directly or indirectly, through the Service, nor for your accessing or downloading of any content, material, program, or file through the Service. LHM may not be held liable for any loss of data or for any damage to your computer system or any other device used to access the Service. Although we use our best efforts and all available means to ensure the confidentiality of your personal data, we may not be held liable in the case of a breach of said confidentiality, regardless of its cause (including, but not limited to, technical difficulty, intrusion into our data processing system, or human mistake).
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LHM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LHM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL LHM'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID LHM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
LHM reserves the right to change this TOS or LHM's policies relating to the Service at any time and will notify you by posting an updated version of this TOS on the Service and/or by sending you an email message. You are responsible for regularly reviewing this TOS. Continued use of the Service after any such changes will constitute your consent to such changes.
There will be occasions when the Service will be interrupted whether for maintenance, upgrades and emergency repairs or otherwise and you agree that LHM will not be liable to you or any third party for any modification, suspension or discontinuance of the Service. LHM is not responsible for any disruption inherent in the operation of the Internet, including viruses or otherwise.
At LHM's or your election, all disputes, claims, or controversies arising out of or relating to the TOS or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before an arbitrator. Unless otherwise agreed by the parties, arbitration will be held in Delaware before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the TOS and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the TOS, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
This TOS will be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You will bring all disputes, actions, claims, or causes of action related to this TOS or in connection with the Service only in the federal and state courts located in Delaware. If any provision of this TOS is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and LHM as a result of this agreement or use of the Service. The failure of LHM to enforce any right or provision in this TOS will not constitute a waiver of such right or provision unless acknowledged and agreed to by LHM in writing. LHM has the right to assign any or all of its rights and obligations under this TOS at any time. This TOS comprises the entire agreement between you and LHM and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.