Effective Date: June 15, 2021
Unless you have entered into a separate written agreement with us regarding the Site, this Agreement is the complete and exclusive agreement between you and us regarding your access to, and use of, the Site and supersedes any oral or written proposal, quote, or other communication between you and us regarding your access to, and use of, the Site.
You will be responsible for the acts and omissions of any users of the Site who are accessing or using the Site on your behalf.
Words and phrases used in this Agreement have the definitions given in this Agreement or, if not defined herein, have their plain English meaning as commonly interpreted in the United States.
3. Ability to Use the Site
In order to accept this Agreement and access the Site, you must be at least 13 years of age (“Minimum Age”). If you are under the age of 18, you may use this Site only with involvement of a parent or guardian. The Site is not intended for users under the Minimum Age. You hereby affirmatively represent that you are at least the Minimum Age.
5. License and Restrictions
a. Use of the Site. Subject to the terms and conditions of this Agreement, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Site, to the extent permitted by its intended functionality, for individual, personal, or internal business purposes and not for the sublicense to, or use by, third parties. Any other use not authorized herein, or by us in writing, is strictly prohibited and a violation of this Agreement, including without limitation: (i) making any unauthorized commercial use of the Site; (ii) misrepresenting your identity, impersonating any person or entity, falsely stating or otherwise misrepresenting your affiliation with any person or entity in connection with the Site, or expressing or implying that we endorse any statement that you make through the Site; (iii) conducting fraudulent activities through the Site; (iv) using the Site to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including others’ privacy rights; and (v) harvesting or collecting personally identifiable data about users of the Site. We may revoke and/or terminate the foregoing license with respect to any aspect of the Site at any time, for any or no reason.
b. Technology, Marks, and Restrictions. As between us and you, we and our licensors shall own all right, title, and interest in and to the Site and any Site Materials (defined below), software, application programming interfaces (APIs), techniques, methodology, procedures, algorithms, protocols, routines, source code, and methods incorporated therein, including any modifications, updates, and improvements thereto (collectively, the “Technology”), and all intellectual property rights therein and thereto, including copyrights, trademarks, trade secrets, patents, and other proprietary rights (collectively, “IPR”). Except as otherwise specifically permitted in this Agreement, you shall not, and shall not permit any third party to: (a) copy, store, edit, modify, download, intercept, exploit, or create any derivative works of the Technology (in whole or in part), including any translations or localizations thereof; (b) license, sell, rent, lease, encumber, transfer, assign, distribute, disclose, post, make available, permit time sharing or simultaneous use of, or otherwise exploit the Technology to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, underlying ideas, or structure or organization of the Technology (in whole or in part); (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Technology; (e) use any systems or means, automated or otherwise, to access, acquire, copy, scrape, harvest, or monitor any part of the Technology; (f) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; or (g) use any other technologies or initiate any other activities that may impair the Technology or harm the interests or property of ours or other users of the Site. We use reasonable means to protect the security of the Technology, but you acknowledge that perfect security on the internet is impossible and that, as a result, Your Information (defined below) may be exposed in the event of a breach. The AQ Academy names, logos, and product and service names are trademarks of ours and its licensors, and you are granted no right or license to use them. Apart from your license to access and use the Site granted above, you are not granted any right or license to use the Technology itself, or any IPR therein and related thereto.
6. Site Materials
a. Ownership and Responsibility. All content included with the Site that we provide such as text, graphics, logos, images, audio clips, video, data, music, and other materials (collectively the “Site Materials“) is the owned or licensed property of ours or our licensors and is protected by all applicable United States and international IPR laws. The collection, arrangement, and assembly of all Site Materials are the exclusive property of ours and protected by United States and international copyright laws. You are solely responsible for verifying the accuracy, completeness, and applicability of all Site Materials and for your use of any Site Materials. Except as set forth in this Agreement, you are granted no licenses or rights in or to any Site Materials or any IPR therein or related thereto.
b. Viewing Site Materials. Subject to your compliance with this Agreement, you may view Site Materials, solely as presented on the Site for any permitted use of the Site. You will not directly or indirectly use any of Site Materials for any other purpose, including any copying, downloading, or redistribution, except that you may download a copy of any certificates that you receive through the Site.
Before using the Site, you are required to establish an account (an “Account”). Approval of your request to establish an Account will be at our sole discretion. Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. You may not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Site through your Account. You will ensure the security and confidentiality of your Account ID and will notify us immediately if any Account ID is lost, stolen, or otherwise compromised. Any activities completed through your Account or under your Account ID will be deemed to have been done by you. You may not: (a) select or use an Account ID of another user with the intent to impersonate that user; and (b) use an Account ID that we, in our sole discretion, deem offensive. In addition to all other rights available to us, including those set forth in this Agreement, we reserve the right to deactivate your Account if you do not use the Site for a period of more than 30 days. In order to reactivate your Account after being deactivated pursuant to the preceding sentence, you will email us at email@example.com to request such reactivation.
8. Your Information
9. Links to Third-Party Websites
The Site may contain links to the websites of third parties. We are not responsible for, and have no liability for, the functionality, actions, inactions, settings, privacy policies, terms, or content of any such third-party websites. Before visiting any such third-party websites, we strongly recommend that you review and understand the terms and conditions, privacy policies, and settings of each such third-party website. The links for third-party websites through the Site do not constitute an endorsement by us of such third-party websites. Other websites may link to the Site with or without our authorization, and we may block any links to or from the Site in our sole discretion. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK.
10. Term and Termination
This Agreement will remain in effect during the periods of time that we authorize your Account to exist (the “Term”). We may terminate this Agreement and your access to the Site at any time. Upon any termination of this Agreement, the rights and licenses granted to you hereunder will immediately terminate, and you shall immediately cease using any and all Site Materials in your possession or control. Following the Term or the termination of this Agreement, or if your account has otherwise been deactivated, you may email us at firstname.lastname@example.org to retrieve a copy of any certificates that you have received through the Site. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to the termination of this Agreement. Any provision of this Agreement that should, by its nature, survive termination of this Agreement will survive its termination.
11. Representations and Warranties
Each party represents and warrants that (a) it has the full corporate right, power, and authority to enter into this Agreement, to perform the acts required by such party hereunder, and to grant the rights set forth herein; (b) this Agreement will constitute a legal, valid, and binding obligation to which the parties will be bound, enforceable against either party in accordance with its terms; (c) you have the legal right and authority to grant the rights and licenses described in this Agreement; and (d) your access to, and use of, the Site will comply with all applicable laws, rules, regulations, and third-party rights and will not cause us to violate any applicable laws, rules, regulations, or third-party rights.
You agree to defend (at our option), hold harmless, and indemnify us, our affiliates, and our and their respective officers, directors, members, managers, shareholders, employees, agents, successors, and assigns from and against all claims, suits, demands, actions, liabilities, assessments, losses, judgments, settlements, fines, penalties, costs, expenses (including attorneys’ fees and dispute resolution costs), or damages resulting from or arising out of (a) your alleged or actual breach of this Agreement, including your express representations and warranties; (b) your use or misuse of the Technology; (c) Your Information; or (d) your alleged or actual infringement or violation of the rights of a third party, including without limitation any IPR, rights of publicity, and rights of privacy.
13. Warranty Disclaimer; Limitation of Liability
a. SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT APPLICABLE LOCAL LAW SPECIFICALLY AND EXPRESSLY LIMITS SUCH EXCLUSIONS OR LIMITATIONS. THOSE SUCH EXCLUSIONS AND LIMITATIONS SET FORTH BELOW WILL APPLY TO YOU ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW.
b. THE TECHNOLOGY IS LICENSED (IF AT ALL) AND PROVIDED “AS IS” AND “AS AVAILABLE.” WE EXPRESSLY DISCLAIM ANY ACCURACY OF, OR RESPONSIBILITY FOR, ANY PORTION OF THE TECHNOLOGY. ANY USE OF THE SITE WILL BE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR GUARANTEES THAT THE TECHNOLOGY WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR WILL NOT CONTAIN CONTENT YOU DEEM OFFENSIVE, INDECENT, OR OTHERWISE OBJECTIONABLE, AND WE DISCLAIM ANY LIABILITY RELATING THERETO. WE MAKE NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE USE OF, OR THE RESULT OF THE USE OF, THE SITE WILL MEET YOUR REQUIREMENTS, BE ACCURATE, RELIABLE, CURRENT, OR THAT OPERATION OF THE TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE.
c. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SITE, OR FOR ANY CAUSES OF ACTION OR CLAIMS IN AN AGGREGATE AMOUNT THAT IS MORE THAN $100, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, OR LOST DATA, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
Any notices required to be delivered to us under this Agreement may be delivered via first class registered U.S. mail, overnight courier, or personal service to Pandora Media, LLC, Attn: Pandora Legal Department, 2100 Franklin St., 7th Floor, Oakland CA 94612. We may provide you with any notices required or allowed under this Agreement by posting them on the Site. Notices provided to us will be deemed given when we actually receive them. Notices provided to you will be deemed given 24 hours after posting to the Site.
We may assign this Agreement or delegate any of our rights or obligations hereunder, or any part thereof, to any third party, including our successor in interest, without requiring your written consent. You may not assign this Agreement in whole or in part, for any reason. This Agreement will be binding upon and will inure to the benefit of the parties and their heirs, executors, administrators, successors, and assigns.
16. Governing Law and Dispute Resolution
a. Governing Law. The validity, construction, interpretation, and legal effect of this Agreement will be governed by the laws of the State of Delaware, United States (irrespective of its choice of law rules) and the federal laws of the United States applicable to contracts entered into and performed entirely within the State of Delaware, United States; provided, however, if you are located outside of the United States, and local laws applicable to you would not recognize governing law of the State of Delaware, United States, then we will select a binding governing law for this Agreement as applies to you. The Site is controlled, operated, and administered by us from our offices within the United States and such control or operation is not intended to subject us or this Agreement to the laws or jurisdiction of any state, country, or territory other than those of the State of Delaware or the United States, except as provided in the previous sentence. WE DO NOT REPRESENT OR WARRANT THAT THE SITE OR ANY PART THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES. Those who choose to access the Site from outside of the United States do so on their own initiative and at their own risk, and are responsible for complying with all statutes, orders, regulations, rules, and other laws of applicable jurisdictions outside of the United States. The application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods to this Agreement are expressly excluded.
b. Dispute Resolution. The parties will attempt to settle all claims, allegations, controversies, and disputes related in any way to this Agreement (“Disputes”) through good faith discussions between the parties. Any Dispute that cannot be resolved between the parties shall be resolved through binding arbitration under this Section 16(b). Either party may refer a Dispute to binding arbitration. Any such arbitration will be conducted in accordance with the rules of the International Chamber of Commerce (the “ICC Rules”) and will be conducted in San Francisco, California, United States. If the value of the Dispute is under $1 million (USD), the arbitration will be presided over by a single arbitrator. If the value of the Dispute is over $1 million (USD), a three-arbitrator panel will preside over the arbitration. All arbitrators will be selected by the parties in accordance with ICC Rules. All arbitrator candidates must be neutral as to each party and will have substantial experience with international commercial contracts. Each party will bear its own expenses and will share equally in fees of the arbitrator(s). The parties will provide each other with all requested documents and records related to the Dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories, except as the arbitrator(s) may expressly allow upon a showing of need. The parties and the arbitrator(s) will be guided in resolving discovery disputes by the Federal Rules of Civil Procedure of the United States, unless the governing law of this Agreement would otherwise prevent the application thereof, in which case we will select discovery rules that are binding on the parties. If disputes arise concerning discovery requests, the arbitrator(s) will have sole and complete discretion to resolve such disputes. The parties agree that time-of-the-essence principles will guide the hearing and that the arbitrator(s) will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator(s) will deliver a written learned opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator(s), which may include legal and equitable relief will be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable law in any court of competent jurisdiction. In addition, the arbitrator(s) will have the discretion to award the prevailing party all or part of its attorneys’ fees and costs, including fees associated with arbitrator(s), if the arbitrator(s) determine(s) that the positions taken by the other party on material issues of the Dispute were without substantial foundation. Any additional costs, fees, or expenses incurred in enforcing the award of the arbitrator(s) may be charged against the party that resists its enforcement. This Agreement will control if there is a conflict between the terms of this Agreement and the ICC Rules.
c. Injunctions. Notwithstanding the foregoing to the contrary, in the event of any violation or threatened violation of the license, restrictions, or intellectual property provisions of this Agreement, Supplier shall be entitled to emergency, preliminary, and other appropriate interim relief in the state and federal courts located in San Francisco, California, United States to enjoin any such violation or prospective violation.
d. Class Actions. NO ARBITRATOR OR COURT MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS OR REPRESENTATIVE PROCEEDING OR CLAIMS UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO FOLLOWING INITIATION OF THE ARBITRATION OR PERMITTED LITIGATION.
In the event any provisions of this Agreement are found to be contrary to applicable law of an administrative or governmental agency or body with jurisdiction over the parties’ performance under this Agreement, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under any applicable law, and the remaining provisions will continue in full force and effect. In the event that such a provision cannot be modified and becomes invalidated or unenforceable, its invalidation or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.