Last Updated: May 1, 2020
“Services” collectively refers to the our website (vocalpockets.com) (the "Site"), marketing emails, other email communications and any other online services offered by Vocal Pockets, our affiliates, or subsidiaries, as each may be updated, relocated, or otherwise modified from time to time, and all intellectual property contained therein. “Products” means any music products and/or related materials made available for purchase or otherwise made to you by Vocal Pockets through the Services. Products and Services are collectively herein referred to as the “Platform.” Any person who accesses and/or uses the Platform, on his or her own behalf or on behalf of any third party, will be referred to herein as a “User.”
- Limited License Grant to User.
Subject to your complete and ongoing compliance with all the Terms, Vocal Pockets grants you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to access and use the Services solely for your personal, non-commercial use for lawful purposes, on devices that you own or control.
Vocal Pockets reserves the right at all times, for any reason, and without notice to: (A) restrict, deactivate, and/or terminate your access to the Services (or any portion thereof); and (B) modify or discontinue providing the Platform (or any portion thereof). You agree that Vocal Pockets will not be liable to you or any third party for any termination or modification to the Platform regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of Platform made by us is to terminate your use of the Platform.
- Accuracy of Information.
You acknowledge that in the event you provide any information to Vocal Pockets which is untrue, inaccurate, not current, or incomplete, Vocal Pockets may terminate these Terms and your continued access and use of the Services.
You represent and warrant that you are either more than 16 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and that you have not previously been suspended or removed from the Services. THE SERVICES ARE NOT FOR PERSONS UNDER THE AGE OF 16 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES BY VOCAL POCKETS. IF YOU ARE UNDER 16 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICES AT ANY TIME OR IN ANY MANNER.
If you are using the Platform on behalf of an individual, company, entity, or organization (each, an “Organization”), you represent and warrant that (A) you are an authorized representative of such Organization with the authority to bind such Organization to these Terms, (B) agree to be bound by these Terms on behalf of such Organization, and (C) your Organization meets the eligibility requirements for the Platform, as set forth in these Terms. Further, you will be solely responsible for ensuring your Organization complies with these Terms.
- Compliance with Laws.
You agree that your registration and use of the Platform will comply with any and all applicable laws and regulations.
In order to access certain functionality of the Services, you may be required to create an account and to select a username and password for such account (your “Credentials”) as well as provide us your name and other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You are entirely responsible for maintaining the security and confidentiality of your account and password. If you believe that your account is no longer secure, then you must immediately notify us here. You are responsible for all use of the Services occurring under your user name and all content posted in connection therewith or with your account elsewhere on the Services. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Vocal Pockets will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Vocal Pockets or another party due to someone else using your account or password. You agree to indemnify, defend, and hold harmless Vocal Pockets and its customers, vendors, affiliates, employees, directors, and agents from and again any claims, losses, damages, and other harm arising in connection with the unauthorized use (including without limitation any use by a person or entity other than you, and any use not expressly permitted by these Terms) of your Credentials. BY CREATING AN ACCOUNT AND/OR COMPLETING A TRANSACTION ON THE SERVICES, YOU HEREBY AGREE TO RECEIVE EMAILS FROM VOCAL POCKETS RELATED TO YOUR ACCOUNT, MARKETING, PROMOTIONS AND THE PLATFORM (AS APPLICABLE).
- Account Inactivity.
Vocal Pockets encourages people to actively log in and use the Services when they create an account. To keep your account active, we recommend logging into your account at least every 3 months. Accounts may be permanently removed due to prolonged inactivity.
- Your Responsibilities.
You may use the Platform solely for lawful purposes, as intended through the provided functionality of the Platform. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Platform, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
- Modify, alter, reproduce, or distribute the Services;
- Rent, lease, lend, sell, redistribute, or sublicense the Services;
- Copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below));
- Attempt to disable or circumvent any security or other technological measure designed to protect the Services or any content available through the Services;
- Remove or alter any copyright, trademark or other proprietary rights notices contained in or on the Services or in or on any content or other material obtained through the Services or the use of the Services;
- Create user accounts by automated means or under false or fraudulent pretenses;
- Use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Services;
- Probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
- Reformat, mirror, or frame any portion of the web pages that are part of the Services;
- Post or transmit (i) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, contains profane or offensive language (e.g., words that are customarily considered “curse words”), or nudity, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
- Transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Services or its contents;
- Harvest or collect information about other users without their prior written consent;
- Otherwise engage in activities that could violate the privacy rights of others;
- Harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Vocal Pockets employees and other users;
- Create a new account with Vocal Pockets, without Vocal Pockets’s express written consent, if Vocal Pockets previously disabled an account of yours;
- Sell, buy, or solicit payment or other forms of consideration (or attempt to do any of the foregoing) in exchange for usernames; or
- Use or access the Platform to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
- Consent to Electronic Communications.
You acknowledge and agree that: (A) the Services, including, without limitation, any content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Vocal Pockets and its licensors, as applicable; (B) the Proprietary Information contains valuable copyrighted and proprietary material of Vocal Pockets; (C) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (D) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
- User Content Generally.
Certain features of the Services may permit Users to submit content to the Services, including comments and reviews via email (“User Content”) and to publish User Content on the Services. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Services. You hereby consent to Vocal Pockets’s access, use, and processing of your User Content for the purpose of providing the Services.
- Limited License Grant to Vocal Pockets.
By submitting User Content, you grant Vocal Pockets a worldwide, perpetual, non-exclusive, transferable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, create derivative works of, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any and all media or distribution methods now known or later developed.
- Limited License Grant to Other Users.
By posting or sharing User Content with other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services. You further acknowledge and agree that Vocal Pockets has no responsibility to review or perform editorial functions whatsoever on User Content, and will not be responsible for the actions of other users or third parties that submit User Content or make use of the User Content you provide to the Services.
- Usage Data.
- User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of submitting User Content. By submitting User Content, you affirm, represent, and warrant that:
- You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Vocal Pockets and other Users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Vocal Pockets, the Services, and these Terms; and
- Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person or organization; or (C) cause Vocal Pockets to violate any law or regulation.
- User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other Users submit, and will not be in any way responsible or liable for User Content. Vocal Pockets may, however, at any time and without prior notice, remove or block any User Content that we have reason to believe, in our sole judgment, violates these Terms, violates applicable law, or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Vocal Pockets with respect to User Content. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH USER CONTENT. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Vocal Pockets does not permit copyright-infringing activities on the Services.
If you are an entity or organization, you agree that Vocal Pockets may list your entity or organization as a customer of Vocal Pockets and use your entity or organization name and logo for marketing or promotional purposes and in other communication with existing or potential Vocal Pockets customers, resellers, or investors. You may revoke this consent at any time by contacting us here.
From time to time, we may make discounts, promo codes and other offers (collectively, “Offers”) available for a limited period of time. We retain the right to change, including discontinuing, any Offers at any moment. You hereby waive any claims against Vocal Pockets arising out of or related to any Offers, including any changes thereto.
You may terminate your account and these Terms at any time by contacting us here.
- Effect of Termination.
Upon termination of these Terms, your license rights will terminate and must immediately crease all use of the Services. The following Sections of these Terms will survive termination or expiration of the Agreement: 8 (last bullet point), 10, 11-17, 21-24, 26 28-31, 33-33, and any other terms which, by their nature, are intended to survive termination or expiration.
- DISCLAIMER OF WARRANTY.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, VOCAL POCKETS, OUR OFFICERS, DIRECTORS, AGENTS, AFFILIATES, JOINT VENTURES, SERVICE PROVIDERS, LICENSORS, CONTENT PROVIDERS, AND EMPLOYEES (COLLECTIVELY, THE “VOCAL POCKETS PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VOCAL POCKETS PARTIES DO NOT WARRANT THAT THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR VOCAL POCKETS OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING THE VOCAL POCKETS PARTIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VOCAL POCKETS PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM AND YOUR DEALING WITH ANY OTHER USERS. YOU UNDERSTAND AND AGREE THAT YOU USE THE PLATFORM, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE PLATFORM AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE VOCAL POCKETS PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE PLATFORM), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM OR THE DOWNLOAD OR USE OF THE MATERIALS, PRODUCTS OR CONTENT.
- LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VOCAL POCKETS PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM (INCLUDING ANY MATERIALS THEREON OR THEREFROM), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE VOCAL POCKETS PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS MAY PROVIDED ELSEWHERE IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VOCAL POCKETS PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Third Party Disputes.
VOCAL POCKETS IS NOT AFFILIATED WITH ANY OTHER USER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER USER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE PLATFORM, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE VOCAL POCKETS (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Force Majeure.
Vocal Pockets will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Vocal Pockets’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, pandemic, or governmental action, in so far as such an event prevents or delays Vocal Pockets in fulfilling its obligations hereunder.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
- Access to Third-Party Services.
The Services may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third-Party Services”). We may use a service like FreshDesk/FreshWorks to provide customer support. In such case, FreshDesk/FreshWorks would be a Third-Party Service.
- No Control Over Third-Party Services.
Vocal Pockets does not have or maintain any control over Third-Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Vocal Pockets does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
- Digital Audio Workstations.
Vocal Pockets provides Products for various digital audio workstations (“DAW”). Vocal Pockets does not maintain any control over DAWS, and is not responsible for a DAW’s content, operation, or use, including any update thereto. You hereby waive any claims against Vocal Pockets arising out of or related to any DAWs.
- Terms of Third-Party Services.
- Disclaimer of Liability for Third-Party Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third-Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Vocal Pockets disclaims any and all responsibility or liability for any harm resulting from your use of Third-Party Services, and you hereby irrevocably waive any claim against Vocal Pockets with respect to the content or operation of any Third-Party Services.
- Open Source Software.
The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
- Dispute Resolution.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VOCAL POCKETS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THESE DISPUTE RESOLUTION TERMS WILL APPLY TO YOU AND VOCAL POCKETS UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO THE LANGUAGE BELOW.
Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms as it is not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including, but not limited to, an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
Despite the provisions of the Section directly above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) bring an individual action in small claims court; (B) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (C) seek injunctive relief in a court of law; or (D) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Vocal Pockets will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Vocal Pockets. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice & Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). Vocal Pockets’s address for Notice is: 90 State St. Suite 700 Office 40, Albany, NY, 12207. The Notice must: (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Vocal Pockets may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Vocal Pockets must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Vocal Pockets will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Vocal Pockets in settlement of the dispute prior to the arbitrator’s award; or (iii) $100.
If you commence arbitration in accordance with these Terms, Vocal Pockets will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (A) solely on the basis of documents submitted to the arbitrator; (B) through a non-appearance based telephone hearing; or (C) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Vocal Pockets for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions.
YOU AND VOCAL POCKETS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION). Further, unless both you and Vocal Pockets agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision.
If Vocal Pockets makes any future change to this arbitration provision, other than a change to Vocal Pockets’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Vocal Pockets’s address for notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Vocal Pockets. If you do not send such written notice, your continued use of the Services following any such change means that you have consented to such change.
If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section “Dispute Resolution” is found to be unenforceable, then the entirety of this Section “Dispute Resolution” will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Services.
Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying Vocal Pockets in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to us here, stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and Vocal Pockets will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.
- Protected Activity Not Prohibited.
You should understand that, insofar as permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state or local government agency or commission (“Government Agencies”). You understand that in connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Vocal Pockets. Notwithstanding, in making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Vocal Pockets confidential information to any parties other than the Government Agencies.
- Governing Law & Choice of Forum.
The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and your use of the Platform. Your use of the Platform may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Manhattan County, NY and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
If you provide any feedback to Vocal Pockets concerning the functionality and performance of the Platform (including identifying potential errors and improvements) (“Feedback”), you hereby grant to Vocal Pockets an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to use and exploit such Feedback without payment or restriction.
- Additional Terms.
Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Service that we may post on or link to from the Services (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
These Terms set forth the entire agreement between Vocal Pockets and you with respect to the Services. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. These Terms may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. If any provision of these Terms is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby. Nothing herein will be deemed to create an employer-employee relationship between Vocal Pockets and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other. No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right. The provisions of these Terms relating to the rights of Vocal Pockets content providers are intended for the benefit of such content providers, and such content providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to these Terms. Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Vocal Pockets and any attempt to do so will be null and void. However, Vocal Pockets may assign or transfer these Terms at any time without your permission.