1. 1. Binding Contract. By using Humbolt (“Humbolt”, “we”, “us”, “our”), by signing up or otherwise using the Humbolt service, websites, and software applications (together, the “Humbolt Service” or “Service”), or accessing any content or material that is made available by Humbolt through the Service (the “Content”) you are entering into a binding contract with Humbolt LLC.
1. 1. The Humbolt Service includes social and interactive features.
1. 1. The Agreements cover important information about Humbolt Services provided to you and any charges, taxes, and fees we bill you. The Agreements include information about future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.
1. 1. In order to use the Humbolt Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in the United States. You also promise that any registration information that you submit to Humbolt is true, accurate, and complete, and you agree to keep it that way at all times.
1. Changes to the Agreements. Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with notice as appropriate under the circumstances, e.g., by displaying a notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us at: [email@example.com].
1. Using Humbolt
1. 1. Humbolt provides streaming services offering a selection of music and other content. Certain Humbolt services are provided to you free-of-charge. Other Humbolt services require payment before you can access them. The Humbolt services that may be accessed after payment are currently referred to as the “Humbolt Basic Service” and the “Humbolt Premium Service” (together, the “Paid Subscriptions”). The Humbolt service that does not require payment is currently referred to as the “Humbolt Free Service”. You can learn more about our services by emailng us at firstname.lastname@example.org.
1. 1. The Humbolt Premium Service may not be available to all users. We will explain which services are available to you when you are signing up for the services. If you cancel your subscription to the Humbolt Premium Service, or if your subscription to the Humbolt Premium Service is interrupted (for example, if you change your payment details), you may not be able to re-subscribe for the Humbolt Premium Service. Note that the Humbolt Premium Service may be discontinued in the future, in which case you will no longer be charged for the Service.
1. 1. From time to time, we or others on our behalf may offer trials various tiers of subscriptions for a specified period without payment or at a reduced rate (a “Trial”). Humbolt reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
1. 1. For some Trials, we’ll require you to provide your payment details to start the Trial. At the end of such trials, we may automatically start to charge you for the applicable paid subscription on the first day following the end of the trial, on a recurring monthly basis. By providing your payment details in conjunction with the trial, you agree to this charge using such payment details. If you do not want this charge, you must cancel the applicable paid subscription through your Humbolt account’s subscription page or terminate your Humbolt account before the end of the trial. If you do not want to continue to be charged on a recurring monthly basis, you must cancel the applicable paid subscription through your Humbolt account’s subscription page or terminate your Humbolt account before the end of the recurring monthly period. Paid subscriptions cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Humbolt will not refund any fees that you have already paid. The limitation section sets forth additional terms regarding cancellation of your paid subscription.
1. Use Rights and Licenses
1. 1. The Humbolt Service and the Content are the property of Humbolt or Humbolt's licensors. We grant you a limited, non-exclusive, revocable license to make use of the Humbolt Service, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or Humbolt. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the Humbolt Service or the Content.
1. 1. The Humbolt software applications and the Content are licensed, not sold, to you, and Humbolt and its licensors retain ownership of all copies of the Humbolt software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
1. 1. All Humbolt trademarks, service marks, trade names, logos, domain names, and any other features of the Humbolt brand (“Humbolt Brand Features”) are the sole property of Humbolt or its licensors. The Agreements do not grant you any rights to use any Humbolt Brand Features whether for commercial or non-commercial use.
1. 1. You agree not to use the Humbolt Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, Humbolt grants no right, title, or interest to you in the Humbolt Service or Content.
1. 1. Third party software (for example, open source software libraries) included in the Humbolt Service are licensed to you either under the Agreements or under the relevant third-party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.
1. Third Party Applications
The Humbolt Service is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third-Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Humbolt does not endorse and is not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
1. User-Generated Content
1. 1. Humbolt users may post, upload, and/or contribute (“post”) content to the Service (which may include, for example, pictures, text, messages, information, playlist compilations, and/or other types of content) (“User Content”). For the avoidance of doubt, “User Content” includes any such content posted to the Humbolt Support Community as well as any other part of the Humbolt Service.
1. 1. You promise that, with respect to any User Content you post on Humbolt, (1) you have the right to post such User Content, and (2) such User Content, or its use by Humbolt as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Humbolt or any artist, band, label, entity or individual without express written consent from such individual or entity.
1. 1. Humbolt may, but has no obligation to, monitor, review, or edit User Content. In all cases, Humbolt reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in Humbolt’s sole discretion, violates the Agreements. Humbolt may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
1. 1. You are solely responsible for all User Content that you post. Humbolt is not responsible for User Content nor does it endorse any opinion contained in any User Content.
1. 1. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST HUMBOLT RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD HUMBOLT HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
1. User Obligations and Grants
1. 1. In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the Humbolt Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same. In any part of the Humbolt Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed, provided to or otherwise made available by Humbolt (e.g. podcasts) may contain advertising as part of the Content. In such cases, Humbolt will make such Content available to you unmodified.
1. 1. If you provide feedback, ideas or suggestions to Humbolt in connection with the Humbolt Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Humbolt to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.
1. 1. You grant Humbolt a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.
1. User Guidelines 1. 1. Users may not, under any circumstance engage in any of the following:
1. 1. copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Humbolt Service or the Content, or otherwise making any use of the Humbolt Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Humbolt Service or the Content or any part of it; 2. using the Humbolt Service to import or copy any local files you do not have the legal right to import or copy in this way; 3. transferring copies of cached Content from an authorized Device to any other Device via any means; 4. reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Humbolt Service, Content or any part thereof unless permitted by applicable law; 5. circumventing any technology used by Humbolt, its licensors, or any third party to protect the Content or the Service; 6. selling, renting, sublicensing or leasing of any part of the Humbolt Service or the Content; 7. circumventing any territorial restrictions applied by Humbolt or it licensors; 8. artificially increasing play count or otherwise manipulating the Services by using a script or other automated process; 9. removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Humbolt Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content); 10. providing your password to any other person or using any other person’s username and password; 11. “crawling” the Humbolt Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Humbolt; or 12. selling a user account or playlist, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.
1. 1. Users may not Post any material or User Content or create a Username which is or includes material that:
1. 1. is offensive, abusive, defamatory, pornographic, threatening, or obscene; 2. is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Humbolt or a third party; 3. includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data; 4. includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service; 5. is intended to or does harass or bully other users; 6. impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading; 7. uses automated means to artificially promote content; 8. involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the Humbolt inbox; 9. involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Humbolt; 10. links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Humbolt; 11. interferes with or in any way disrupts the Humbolt Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or Humbolt’s computer systems, network, usage rules, or any of Humbolt’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or 12. conflicts with the Agreements, as determined by Humbolt.
1. 1. You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your Humbolt account. You also agree that Humbolt may also reclaim your username for any reason. 1. 1. The User is solely responsible for keeping the password for User’s account confidential and secure. If the username or password is lost or stolen, or if User reasonably believes that there has been unauthorized access to the account by third parties, notify Humbolt support immediately and change the password as soon as possible.
1. Infringement and reporting User Content
Humbolt respects the rights of intellectual property owners. If you believe that any Content infringes your intellectual property rights or other rights, see Humbolt’s copyright policy. If Humbolt is notified by a copyright holder that any Content infringes a copyright, Humbolt may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to Humbolt with a request to restore the removed content. If you believe that any Content does not comply with the User Guidelines, please notify Humbolt support and fill out a notification automated form.
1. Service limitations and modifications Humbolt will make reasonable efforts to keep the Humbolt Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Humbolt reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Humbolt Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Humbolt Service or any function or feature thereof.
1. Label Accounts If you establish a Humbolt account on behalf of a company, organization, entity, or Label (a “Label”, and such account a “Label Account”), the terms “you” and “your”, as used throughout the Agreements, apply to both you and the Label, as applicable. If you open a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in the Agreements and to bind the Label to the Agreements.
1. 1. Following: The Label may only follow users who first follow the Label; and the Label may not take any action that implies an endorsement or relationship between the Label and the followed user, unless the Label has independently obtained the rights to imply such an endorsement. Upon Humbolt’s request, in its sole discretion, a Label must cease following a user.
1. 1. Listening: The Label may not stream media.
1. 1. Messaging: The Label may only send messages to users who first send messages to the Label.
1. 1. Label Playlist and Sharing: The Label may not create or share any Humbolt playlists, whether within the Humbolt Service or elsewhere, that imply an endorsement or relationship between the Brand and any artist or any other party, unless the Label has independently obtained the rights to imply such an endorsement. Labels may wish to consult Humbolt’s Brand Playlist Guidelines.
1. Brand Accounts
If you establish a Humbolt account on behalf of a company, organization, entity, or brand (a “Brand”, and such account a “Brand Account”), the terms “you” and “your”, as used throughout the Agreements, apply to both you and the Brand, as applicable. If you open a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in the Agreements and to bind the Brand to the Agreements.
1. 1. Following: The Brand may only follow users who first follow the Brand; and the Brand may not take any action that implies an endorsement or relationship between the Brand and the followed user, unless the Brand has independently obtained the rights to imply such an endorsement. Upon Humbolt’s request, in its sole discretion, a Brand must cease following a user.
1. 1. Listening: The Brand may not stream media.
1. 1. Messaging: The Brand may only send messages to users who first send messages to the Brand.
1. 1. Brand Playlist and Sharing: The Brand may not create or share any Humbolt playlists, whether within the Humbolt Service or elsewhere, that imply an endorsement or relationship between the Brand and any artist or any other party, unless the Brand has independently obtained the rights to imply such an endorsement. Brands may wish to consult Humbolt’s Brand Playlist Guidelines.
1. Humbolt Customer Support
For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit a ticket to our Customer Service department using the Customer Service email email@example.com on the About Us section of our website. We will use reasonable endeavors to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.
1. Export Control
Humbolt’s products may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (2) are not a denied party as specified in the regulations listed above.
You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Humbolt under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreements.
1. Payments and cancellations.
Paid Subscriptions may be purchased directly from Humbolt or through a third party, such as a telephone company, either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the Humbolt Service for a specific time period (“Pre-Paid Period”). If you have purchased a Paid Subscription using a Code, your Paid Subscription will automatically terminate at the end of the Pre-Paid Period, or when there is an insufficient pre-paid balance to pay for the Service. When you register for a Paid Subscription, Trial, or Code online, you consent to get access to Humbolt Premium immediately.
Unless your Paid Subscription has been purchased as a Pre-Paid Period, your payment to Humbolt will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment or Paid Subscription and/or terminate any of the Agreements before the end of the current subscription period, we will not refund any subscription fees already paid to us. The refund method will depend upon the payment method.
If you believe you are entitled to receive a refund of any monies paid to Humbolt, please contact Customer Support.
If you have purchased your Paid Subscription through a third party, your subscription is also subject to the terms of your agreement with that third party (in addition to these Terms). To cancel your subscription, you must cancel directly with that third party.
Humbolt may change the price for the Paid Subscriptions, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Humbolt Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Humbolt Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
1. Term and Termination
The Agreements will continue to apply to you until terminated by either you or Humbolt. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. Humbolt may terminate the Agreements or suspend your access to the Humbolt Service at any time, including in the event of your actual or suspected unauthorised use of the Humbolt Service and/or Content, or non-compliance with the Agreements. If you or Humbolt terminate the Agreements, or if Humbolt suspends your access to the Humbolt Service, you agree that Humbolt shall have no liability or responsibility to you, and Humbolt will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Humbolt account, please contact us through the Customer Service contact form which is available on our About Us page. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.
Sections 6, 7, 8, 10, 14, 16, 17, 18, 19, 20, 21, 22, 23, and 24 herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination
1. Warranty and Disclaimer
HUMBOLT ENDEAVOURs TO PROVIDE THE BEST SERVICE POSSIBLE, BUT YOU UNDERSTAND AND AGREE THAT THE HUMBOLT SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE HUMBOLT SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HUMBOLT AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER HUMBOLT NOR ANY OWNER OF CONTENT WARRANTS THAT THE HUMBOLT SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, HUMBOLT MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE HUMBOLT SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT HUMBOLT IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE HUMBOLT SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM HUMBOLT SHALL CREATE ANY WARRANTY ON BEHALF OF HUMBOLT IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
1. Limitation and time for filing
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE HUMBOLT SERVICE IS TO UNINSTALL ANY HUMBOLT SOFTWARE AND TO STOP USING THE HUMBOLT SERVICE. WHILE HUMBOLT ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO HUMBOLT, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HUMBOLT, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE HUMBOLT SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER HUMBOLT HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE HUMBOLT SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO HUMBOLT DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreements removes or limits Humbolt’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST HUMBOLT MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (24.2.1) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (24.2.2) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
1. Third party rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Humbolt, and in no event shall the Agreements create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.
If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Humbolt only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
1. Entire Agreement
Other than as stated in this section or as explicitly agreed upon in writing between you and Humbolt, the Agreements constitute all the terms and conditions agreed upon between you and Humbolt and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.
Please note, however, that other aspects of your use of the Humbolt Service may be governed by additional agreements. That could include, for example, access to the Humbolt Service as a result of a gift card or free or discounted Trials. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. Some of those additional terms are listed on Humbolt’s website. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail
1. Severability and Waiver
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Humbolt or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive Humbolt’s or the applicable third party beneficiary’s right to do so.
Humbolt may assign the Agreements or any part of them, and Humbolt may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.
To the fullest extent permitted by applicable law, you agree to indemnify and hold Humbolt harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Humbolt Service; and (4) your violation of any law or the rights of a third party.
1. Choice of law, mandatory arbitration and venue
1. 1. Governing Law / Jurisdiction
The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of New York, United States of America, without regard to choice or conflicts of law principles.
Further, you and Humbolt agree to the jurisdiction of the Courts in Kings County to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration under Section 24.2.1.
Humbolt does not accept any codes of conduct as mandatory in connection with the services provided under this agreement.
1. 1. Arbitration Agreement
1. 1. Dispute resolution and arbitration.
You and Humbolt agree that any dispute, claim, or controversy between you and Humbolt arising in connection with or relating in any way to these Agreements or to your relationship with Humbolt as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Humbolt further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
1. 1. Exceptions
Notwithstanding the clause above (24.2.1), you and Humbolt both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
1. 1. No Class Or Representative Proceedings: Class Action Waiver
YOU AND HUMBOLT 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 ACTION. Unless both you and Humbolt agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
1. 1. Arbitration Rules
Either you or we may start arbitration proceedings. Any arbitration between you and Humbolt will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Humbolt agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Humbolt can also help put you in touch with the AAA.
Any arbitration hearings will take place in the county (or parish) of your billing address, provided that if the claim is for $25,000 or less, the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator.
If you choose to file an arbitration proceeding and you are required to pay a filing fee, you will be responsible for the filing fee. The arbitrator shall 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.
1. 1. Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Humbolt's address for Notice is: Humbolt 507 W 111th Street, New York, New York, 10025. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Humbolt may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Humbolt shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Humbolt’s last written settlement offer, then Humbolt will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
1. 1. Enforceability.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 24.1 shall govern any claim in court arising out of or related to the Agreements.