GAANA PEHCHAANA/ GAANAP
TERMS OF SERVICE
EFFECTIVE DATE: JULY 27, 2022
LAST UPDATED: JULY 27, 2022
GAANA PEHCHAANA/ GAANAP
TERMS OF SERVICE
EFFECTIVE DATE: JULY 27, 2022
LAST UPDATED: JULY 27, 2022
1) ACCEPTANCE OF TERMS
You must be at least 13 years old to access and use the GaanaP Services. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 13 years old; (ii) you have not previously been suspended or removed from otherwise using or accessing the GaanaP Services; (iii) your use of the GaanaP Platform or GaanaP Services is in compliance with any and all applicable laws and regulations; and (iv) any registration information that you submit to GaanaP is true, accurate, and complete, and you agree to keep it that way at all times. No part of the GaanaP Services is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE GAANAP SERVICES AT ANY TIME OR IN ANY MANNER.
2) MODIFICATION OF THE TERMS
GaanaP may modify these Terms and we encourage you to review these Terms regularly. Any changes or modifications will be effective immediately upon posting the revisions to the GaanaP Platform and/or GaanaP Website, and you will be bound by the revised Terms. If material changes to these Terms are made, GaanaP will notify you by posting a notice on the GaanaP Platform or GaanaP Website or by sending you a notice by email or text (or similar format) to the address registered with your Account (as defined below). We will also indicate at the top of this page when these Terms were last updated. Your continued use and access of the GaanaP Services after modification of these Terms mean that you accept all modified Terms. Notwithstanding the foregoing, a modification to Section 17 (“MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT”) shall be communicated in accordance with Section 17.
3) DESCRIPTION OF GAANAP PLATFORM, GAANAP SERVICES, GAANAP WEBSITE
GaanaP provides streaming software services that are developed and designed to enable streaming of specific content through the GaanaP Service ready devices, including its website, which is accessible at http://www.gaanap.com (the “GaanaP Website” or “Site”) and without limitation, its mobile application on iOS and Android, “Gaana Pehchaana,” and related social media platform(s) (collectively, the “GaanaP Platform”). We may also offer GaanaP Property (defined below in Section 6) to enable in-app purchases. The GaanaP Website, the GaanaP Platform, and the GaanaP Property is collectively referred to as the “GannaP Services.”. GaanaP provides use and access to the GaanaP Services to its end users (the “Users” or “You”) via subscription and non-subscription services to obtain GaanaP Property (as defined below). You may use the GaanaP Services only in geographical locations where the GaanaP Services are offered (the “Territory”). We reserve the right to prevent any and all use of the GaanaP Services that are not in the Territory.
4) ACCESS TO GAANAP SERVICES
a) GaanaP Services. The GaanaP Services are the property of GaanaP. By using the GaanaP Services or creating an Account (whether through GaanaP Services or a third party such as Facebook, Inc.), You agree to be bound by these Terms which shall continue to apply for as long as You are accessing or using the GaanaP Services. When the User is no longer accessing the GaanaP Platform, subscribed to an existing Account, or using any GaanaP Services, the User’s legal obligations and liabilities towards GaanaP that have accrued over time shall be unaffected by this cessation. For Users accessing the GaanaP Services through a third party website, social network or mobile applications provider, You also agree to comply with the applicable third party’s terms of service or use, as applicable. GaanaP reserves all rights not expressly granted in these Terms of Service.
You agree to abide by Your Responsibilities (as stated in Section 8) and not to access and/or use the GaanaP Services or any part thereof in any manner not expressly permitted by the Agreement. Except for the rights expressly granted to You in the Agreement, GaanaP grants no right, title, or interest to Users in the GaanaP Services.
b) Account. In order access and use the GaanaP Services, You will be required to create an account with us (Your “Account”) and you may be required to maintain an account with the third party social networking site (such as Facebook, Inc.) through which You access the GaanaP Services. Once You create an Account, Your Account will allow you to access the GaanaP Services. You may control certain aspects of how You interact with the GaanaP Services by changing your settings in the GaanaP Platform and/or the social networking site through which You access the GaanaP Services. Your Account is for your individual, personal and non-commercial use only, and you may not authorize others to use Your Account for any purpose. In creating Your Account, you certify that all information you provide is complete and accurate. You agree to update your information when required or requested, and you further agree not to use another person’s account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, Your Account and password, and You agree to accept sole responsibility for all activities that occur under Your Account or password. You agree to notify us immediately at firstname.lastname@example.org of any breach of security or unauthorized use of Your Account or any violation of this Agreement by other of which you are aware. Although we will not be liable for your losses caused by any unauthorized use of Your Account, whether with or without your knowledge. You may be liable for our losses or the losses of our third-party licensors, content providers, merchants, advertisers, sponsors, and service providers due to such unauthorized use. Without limiting anything in this Agreement, we reserve the right, in our sole discretion, to restrict, suspend, or terminate Your Account and/or your access to any or all parts of the GaanaP Services at any time, for any reason, including without limitation Your violation of these Terms, with or without prior notice, and without liability to us, including in the event we stop offering any aspect of the GaanaP Services.
Users acknowledge and agrees that the GaanaP Services are designed for a purpose serving a particular community and interest, and that any Content submitted must conform to such purpose.
a) Submission of Content. Some areas of the GaanaP Services may allow You and other users to post content, comments, questions, and other information (Your “Content”). You acknowledge and agree that your communications with other users or members via chats, conferences, bulletin boards, blogs, posts and any other publicly accessible avenues of communication through the GaanaP Services are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications. You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available on or through the GaanaP Services. You understand and agree that all Content publicly posted or privately transmitted through the GaanaP Services is the sole responsibility of the person from whom such content originated and that we will not be liable for any errors or omissions in any such Content. You further understand and agree that we cannot guarantee the identity of other users with whom you may interact in the course of using the GaanaP Services or the data that any such user may provide about themselves.
We reserve the right to refuse to transmit or post, and to disclose, block or remove any Content or materials, including but not limited to, Your Content, in whole or in part, that we in our discretion deem to be in violation of this Agreement, our policies and procedures, or otherwise harmful to persons using the GaanaP Services. In addition, we may also take reasonable steps, including but not limited to, limiting or filtering the number of emails, chat messages or posts sent or received by a user. We are not obligated in any way to use Your Content.
b) Your Representations and Warranties about Your Content. By posting Content on or through on or though the GaanaP Services, you represent and warrant that:
(i) None of us, our customers, licensees or business partners shall be required to make any payments with respect to Your Content, including but not limited to, payments to you, third parties, music publishers, mechanical rights agents, performance rights societies, union guilds or your licensors or any persons who contributed to or appear in Your Content;
(ii) You have full right, power and authority to post Your Content and have secured all third-party consents, licenses and permissions necessary to post your Content and grant to us the rights and licenses described below; and
(iii) Your Content (a) is not defamatory; (b) does not infringe upon, misappropriate or violate the rights of any third party, including but not limited to, any intellectual property rights, rights of publicity or any other privacy or proprietary rights; and (c) does not violate and law, rule, regulation or ordinance.
c) Rights in Content. By uploading, making available or submitting Content, you grant us and our business partners and affiliates a royal-free, perpetual, irrevocable, world-wide, assignable and transferrable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform and otherwise exploit Your Content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind. In addition, you grant each user of the GaanaP Services a non-exclusive license to use, modify, reproduce, distribute, prepare derivative works of, display and perform any Content as allowed by the functionality of the GaanaP Services. You hereby grant us and other users of the GaanaP Services all consents, rights and clearances to enable us to use Your Content for these purposes. Without limiting the foregoing, we may:
(i) Host your Content on our servers and those of our third party service providers that we have engaged to host the GaanaP Services and display Your Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the GaanaP Services;
(ii) Re-encode Your Content as needed to be compatible with different mobile phones which may degrade the sound quality of your music and/or video files;
(iii) Edit Your Content to ensure that it complies with our policies and guidelines; and
(iv) Use any trademarks, service marks or trade names incorporated into your Content and the likeness of any individual whose performances or image is contained in your Content.
6) VIRTUAL CURRENCY AND GOODS
a) In-App Purchases. Certain aspects of the GaanaP Services may allow you to obtain points, tokens, data or other fictional property representing virtual achievements (“GaanaP Property”). GaanaP Property can be earned through gameplay or “purchased” with legal currency. GaanaP Property have no real-world value and cannot be redeemed for actual currency, goods or other items of monetary value, including in the event that you have unused GaanaP Property remaining in Your Account at the time Your Account is closed, whether such closure was voluntary or not. You understand and agree that regardless of the terminology used, the purchase or acquisition of GaanaP Property amounts to a limited license right governed solely by the terms of this Agreement and available for distribution at our sole discretion and does not transfer ownership of that GaanaP Property to you. You acknowledge that you do not own Your Account you use to access the GaanaP Services, nor do you possess any rights of access or rights to data stored by us or on our behalf on any servers, including but not limited to, any data representing or embodying any or all of your GaanaP Property. You agree that we have the absolute right to manage, regulate, control, modify and/or eliminate GaanaP Property in our sole and absolute discretion. All data on ours or our business partners’ servers are subject to deletion, alteration or transfer. Notwithstanding and value attributed to such GaanaP Property or data by you or any third party, you understand and agree that any virtual property, data, account history and account content residing on our servers may be deleted, altered, moved or transferred at any time for any reason in our sole discretion, with or without notice and with no liability of any kind.
7) PAID SERVICES
b) Subscriptions. GaanaP Services allow Users to obtain subscriptions in order to access premium features and unlimited content. Subscription periods are offered in different duration-packages, including monthly and annual installments, with options to automatically renew. All prices are subject to change without notification. GaanaP may elect to occasionally run promotion prices as incentives or limited time opportunities for qualifying purchases made during the promotional time period. Due to the time sensitive and promotional nature of these events, We are unable to offer price protection or retroactive discounts or refunds for previous purchases in the event of a price reduction or promotional offering. Payment will be charged to Your Account (or mobile applications provider account, as applicable) at confirmation of purchase. You have the option to turn on automatic renewals of these subscriptions. Your Account will be charged for renewal within 24-hours prior to the end of the then-current period at the cost of the chosen package. Subscriptions may be managed by the user and auto-renewal may be turned off by going to the user's Account Settings after purchase. No cancellation of the then-current subscription is allowed during an active subscription period. If GaanaP offers the option of a free trial period, you may cancel a subscription during its free trial period via the subscription setting through Your Account. This must be done 24 hours before the end of the subscription period to avoid being charged. Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription to that publication, where applicable. If you purchase a subscription through a social networking site or app store services, the applicable social networking site’s or app store’s payment and cancellation terms will be applicable to your subscription and We encourage you to review these terms prior to purchasing the subscription.
c) No Refunds. You may cancel your user account with us at any time; however, there are no refunds for cancellation. As permitted under the terms of this agreement, We have the right at any time for any reason or no reason to suspend or terminate Your Account, terminate this agreement and/or refuse any and all current or future use of the GaanaP Services without notice, refund, obligation or liability to You. In the event that we suspend or terminate Your Account or this agreement, You understand and agree that You shall receive no refund or exchange from Us. We assume no liability for purchaser error, trial versions, software purchased for the wrong telephone, device or platform, promotion codes or discounts not provided at the time of purchase, or any purchased item 90 days after the purchase date for any reason. We will not be liable for any errors on billing statements issued to you by your carrier. You accept full responsibility for confirming that the phone or other device manufacturer, phone or other device model, and carrier are supported and that the phone or other device is compatible to the products or services purchased, downloaded or otherwise obtained by you through the GaanaP Services.
d) Taxes. You agree to pay all federal, state and local taxes levied or based on this agreement or any activities hereunder, exclusive of any taxes based on our net income, unless you are exempt from the applicable taxes.
8) YOUR RESPONSIBILITIES
You alone are responsible for your conduct while using GaanaP Services. To keep GaanaP Services accessible for all users, you agree to respect the right of other users of the community, including as described in these Terms. To protect our users and contributors from Prohibited Activity, as described below, GaanaP reserves the right to take appropriate actions, including by restricting the frequency of communications a user may send in a certain time period, or reviewing, editing, or removing user content which in our sole and absolute judgment violates any of these Terms. To protect the integrity of the GaanaP Services, we reserve the right to block users from certain IP addresses from accessing the GaanaP Services for any violation of these Terms.
“Prohibited Activities” means each and every prohibited action set forth in this section. To keep GaanaP Services safe and accessible, in connection with GaanaP Services, you warrant and covenant that you will not use the GaanaP Services :
- to impersonate another person or entity, claim a false identity when creating an Account, or use an Account of a third-party;
- for any purpose other than to use and access the GaanaP Services in accordance with these Terms;
- to bypass, disable or otherwise interfere with security related features of the GaanaP Services or features that prevent, limit, or restrict the access to the GaanaP Services and/or the use or re-production of any Content or any other material on the GaanaP Platform;
- to delete or modify notices regarding copyright or other proprietary rights on the GaanaP Platform or Site;
- for any illegal purpose in any jurisdiction;
- collect, disseminate, or otherwise use personal information about Users or any third-parties without their consent or GaanaP’s consent, or in violation of any applicable law;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code in any of the software, firmware, or hardware embodied in the GaanaP Services;
- interfere with or damage the operation of the GaanaP Services or any User’s enjoyment of them by any means, including, but not limited to, uploading or otherwise disseminating viruses, spyware, worms or other malicious code.
- to interfere with GaanaP’s mission, purpose, and/or business;
- publish sensitive personal data on the GaanaP Website and/or Platform, including on your own Account. Sensitive personal data is defined under U.S. Law, and includes health information related to a physical person; or
- sell, license, distribute, copy, record, modify, publicly perform or display, transmit, publish or republish, including republication on another website, edit, adapt, create derivative works from any aspect of the GaanaP Services not otherwise authorized by these Terms.
GaanaP reserves the right to suspend, discontinue or modify any aspect of the GaanaP Services at any time, including the right to discontinue fully or partially the display of any Content or linked or embedded content, and to prevent access to the GaanaP Website or any Content from specific territories (geo-blocking).
9) THIRD PARTY SERVICES
a) Third Party Services. Third party services may be used when you:
(i) purchase, install or update the GaanaP Platform, including but not limited to digital storefronts such as the Apple iOS App Store, Google Play Store, Amazon App Store; and
(ii) use the GaanaP Services, including but not limited to gameplay recording and sharing, social media connectivity and the like.
b) Third Party Terms and Conditions. These third party services are subject to respective third party terms and conditions, as applicable. Please review these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider. We are not liable for the activities of any such third parties.
c) Third Party Reliance. The GaanaP Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You understand that:
(i) links to third party content or services are not endorsements, approvals or recommendations by Us of the third parties, or of any content or services provided by them;
(ii) your use of any third party content or services may be subject to separate terms and conditions; and
10) TERM AND TERMINATION
a) Term. These Terms are effective beginning when you accept the Terms or first access or use the GaanaP Services, and end when terminated as described below. You may terminate your account with and these Terms at any time by sending an email to email@example.com or use any termination functionality that may be offered through the GaanaP Services. GaanaP may, at its sole discretion, terminate these Terms and/or suspend or terminate your access to the GaanaP Services, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law.
b) Termination. We may terminate your use of or access to the GaanaP Services, including without limitation by terminating Your Account, for any violation of these Terms. We may also change, suspend, or discontinue any aspect of the GaanaP Services at any time, with or without notice to You. Upon termination of these Terms for any reason, all of your Content may be made inaccessible via the GaanaP Services although copies of your Content may remain stored on back-up storage media maintained by or for Us. You grant Us a royalty-free license to retain such back-up copies of Your Content on storage media maintained by or for Us. If you stop using the Gaana P Services but keep Your Content on or available through the GaanaP Services, then these Terms will continue to apply in full force and effect for so long as any of Your Content is available on or through the GaanaP Services. The following Sections, and any other term reasonably understood to be intended to survive termination, shall survive any termination of these Terms: 1, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
11) COMMUNICATIONS FROM GAANAP AND OTHERS
By accessing or using GaanaP Services, you consent to receive communications from other users and GaanaP through the GaanaP Services, or through any other means such as emails or push notifications. These communications may promote GaanaP, or businesses listed on GaanaP and may be initiated by GaanaP, businesses listed on GaanaP, or other users.
12) INTELLECTUAL PROPERTY AND OWNERSHIP
a) GaanaP Intellectual Property Rights. All aspects and content of the GaanaP Services, including without limitation all trademarks, service marks, trade names, copyright, patents, trade secrets, videos, music, images, software, text, graphics, interactive features, logos, photographs, and other audio and/or visual material, except Your Content (collectively the “GaanaP Content”) is the sole and exclusive property of GaanaP, its licensors, and/or its suppliers. You may not copy, reproduce, distribute, publish, display, modify, create derivative works of, transmit or in any way use or exploit any GaanaP Content, in whole or in part, without GaanaP’s express prior written consent. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the GaanaP Services and GaanaP Content and the Service are expressly retained by GaanaP.
b) Your Intellectual Property. As between GaanaP and you, all copyright and other intellectual property rights in and to Your Content shall be owned by you.
13) COPYRIGHT COMPLAINTS; DMCA NOTIFICATION
We may, in our sole discretion, remove any Content that appears to infringe on the intellectual property rights of others or that is violation of this Agreement. It is our policy to respond to and investigate claims of copyright and other intellectual property infringement. We have a policy of terminating access to the GaanaP Services by users who are repeat infringers.
You may notify us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). We will respond expeditiously to notices of alleged infringement sent pursuant to the DMCA.
In order to notify us of a copyright infringement claim pursuant to the DMCA, you must provide:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works;
(iii) a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material, including a URL address;
(iv) your address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.
The notice described above should be sent our designated copyright agent at [email protected]. If you fail to comply with all of the requirements described above, your DMCA notice may not be valid.
If you believe that any Content or material that was removed (or to which access was disabled) is not infringing, or you have the right to post and use such Content or material from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, you must send a counter notice containing the following information to our designated copyright agent at [email protected]:
(i) a physical or electronic signature of you or the person authorized to act on behalf of the owner of the exclusive right that is alleged to have been infringed;
(ii) identification of the copyrighted work that has been removed or blocked or to which access has been disabled;
;(iii) the location at which the allegedly infringing material appeared before it was removed or disabled, including a URL address;
(iv) your address, telephone number and email address;
(v) a statement by you that you have a good faith belief that the material removed or disabled was the result of a mistake or misidentification of the material; and
(vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.
If a counter-notice is received by our designated copyright agent at the address above, we may send a notice to the complaining party that the removed material will be restored or we will cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored within ten (10) to fourteen (14) business days or more after receipt of the counter notice, at our discretion.
15) FEEDBACK SUBMISSIONS AND CUSTOMER SUPPORT
We welcome your feedback. However, you agree that GaanaP is free to use any comments, information, ideas, concepts, reviewers, techniques, or any other material contained in any communication you may send to us, worldwide and in perpetuity without acknowledgment, compensation, or payment to you in any manner and for any purpose, including to improve GaanaP Services and create other products and services. If you need assistance or have questions about. Your Account, you may contact us at [email protected]
16) DISCLAIMERS OF WARRANTIES, REPRESENTATIONS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
YOU AGREE THAT YOUR USE OF THE GAANAP SERVICES IS AT YOUR OWN RISK. THE GAANAP SERVICES AND/OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE GAANAP SERVICES, INCLUDING WITHOUT LIMITATION ANY RELATED SOCIAL MEDIA PLATFORMS OR MOBILE APPLICATIONS, ARE PROVIDED “AS IS”. THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GANNAP DOES NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GAANAP DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE GAANAP SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE.
YOU AGREE THAT GAANAP IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF ANY USER OR THIRD PARTY.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL GAANAP OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AFFILIATES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT GAANAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR FOR DIRECT DAMAGES IN EXCESS OF FEES ACTUALLY PAID BY YOU TO GAANAP IN THE THREE (3) MONTHS PRIOR TO THE EVENTGIVING RISE TO A CLAIM HEREUNDER.
YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS GAANAP AND GAANAP’S SHAREHOLDERS, OFFICERS, DIRECTORS, LICENSEES, SUBLICENSEES, CUSTOMERS, USERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF ANY PROVISION CONTAINED IN THESE TERMS; YOUR UNAUTHORIZED USE/ACCESS OF THE GAANAP SERVICES (INCLUDING YOUR USE OF GAANAP CONTENT); AND YOUR CONTENT. GAANAP RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
17) GOVERNING LAW AND JURISDICTION
This Agreement shall be exclusively interpreted, construed and enforced under Texas (U.S.A.) law without reference to its choice of law rules and, if any federal right violation is alleged, the laws of the United States of America. The United Nations Convention on Contracts for Sale of International Goods does not apply to these Terms. Subject to Section 17 (Mandatory Arbitration, Class Action Waiver, And Opt-Out), venue for any court action arising out of or relating to this Agreement shall be exclusively brought in the appropriate state court located in the City and County of San Francisco or any federal court in the Northern District of California, and you and GaanaP irrevocably consent to the personal jurisdiction of such courts for any permitted court action on any obligation hereunder.
18) MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a) Application. You and GaanaP agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 17 is intended to be interpreted broadly and governs any and all disputes between us including claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
b) Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at [email protected] and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with GaanaP, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
c) Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 17(h) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including this Agreement’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of GaanaP Services shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules will govern payment of all arbitration fees. GaanaP will pay all arbitration fees for claims less than $75,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. GaanaP will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
d) Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
e) Filing a Demand. To start an arbitration, you must do the following: (i) Write a Demand for Arbitration (“Demand”) that (a) briefly explains the dispute, (b) lists your and GaanaP’s names and addresses, (c) specify the amount of money in dispute, if applicable, (d) identify the requested location for a hearing if an in-person hearing is requested, and (e) state what you want in the dispute; (ii) send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (iii) Send one copy of the Demand for Arbitration to us at [email protected].
f) The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in San Francisco County, California, United States, and you and GaanaP agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
g) Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND GAANAP 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
h) Exception for Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in San Francisco, California for disputes or claims within the scope of that court’s jurisdiction.
i) 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of changes to this section being announced on the Site or Platform. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, GaanaP also will not be bound by them
j) Changes to this Section. GaanaP will provide thirty (30) days’ notice of any changes to this section by posting on the Services, Website, or Platform. Amendments will become effective thirty (30) days after they are posted on the GaanaP Services, Platform, and/or Site or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the GaanaP Services, GaanaP Platform, and/or GaanaP Property.
k) Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the GaanaP Services, GaanaP Platform, and/or GaanaP Property.
19) SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.
20) RELATIONSHIP OF THE PARTIES. Nothing in this Agreement establishes any relationship of partnership, joint venture, employment, franchise or agency between you and GaanaP. You do not have the power to bind GaanaP or incur obligations on GaanaP’s behalf without GaanaP’s prior written consent. GaanaP does not have the power to bind you or incur obligations on your behalf without your prior written consent (including consent given through the Site or GaanaP Platform).
21) MISCELLANEOUS. This Agreement, including its Terms: (i) are drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting party; (iii) use, though strictly for convenience, various titles and headings which shall not affect interpretation of this Agreement; (iv) set forth the parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the parties’ prior agreements, writings, commitments, discussions and understandings; (v) and any right or obligation set forth in these Terms can only be amended, modified, or waived in a writing signed by GaanaP; and (vii) shall bind (and inure to the benefit of) the parties, and the parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” shall be deemed to mean “including, but not limited to,” regardless of whether such term is initially capitalized and notwithstanding any conflicting provision of these Terms. YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.