Terms of Service.
Acceptable
Use Policy.
Privacy Policy.
Opt Out Notice.
Data Deletion Instructions.
Information about our use of cookies.
BY ACCESSING OR USING THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, AND/OR THE HORN SERVICE DESCRIBED IN THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS TERMS OF SERVICE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE.
TERMS OF SERVICE AGREEMENT
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
1. Acceptance of Terms. This Terms of Service Agreement (these "Terms" or this "Agreement") is an agreement between you (referred to in these terms as "you" or "your") and 8eo Inc., a Virginia corporation (referred to in these Terms as "8eo", "we", "us", or "our"), the owner and operator of (the "Horn Website"), the Horn software and mobile applications (collectively, the "Horn Software and Apps"), and the Horn Service (as defined below). You agree to read these Terms carefully.
If you create or use a Horn Account (as defined below) on behalf of another Person (as defined below, including, for example, a company or other organization) ("Your Company"), you represent to us that you have the authority and authorization to bind Your Company to these Terms, and in that case, the terms "you" and "your" will refer both to you in your individual capacity and to Your Company (and the obligations and liabilities of you and Your Company under these Terms will be joint and several). If you do not have such authority and authorization, or if you or Your Company do not agree to all of the provisions of these Terms, you are not permitted to access or use the Service.
You acknowledge that these Terms are a legally binding contract between you and 8eo, even though it is not physically signed, and you acknowledge that these Terms govern your access and use of the Horn Website, the Horn Software and Apps, and the Horn Service.
In this Agreement, you (including, if applicable, Your Company) and 8eo are referred to individually as a "party" and collectively as the "parties", and "User" (and "user") refers to a Person who accesses or uses the Horn Service.
These Terms include important provisions affecting your legal rights and obligations, including, for example, (a) a disclaimer of warranties and limitation of liability by 8eo (see Section 15); (b) dispute resolution provisions that include a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, an agreement that all controversies, claims, and disputes (except for certain claims in small claims court) will be decided by binding arbitration instead of by a court, a limitation of the period of time for bringing a claim against us, and an agreement that any court or arbitration proceedings will take place only in Charlottesville, Virginia, United States (see Section 17); and (c) an obligation for you to pay any expenses and liabilities (such as damages, costs, or legal claims) that the 8eo Parties (as defined below) suffer as a result of your violation of any of the provisions of these Terms (see Section 13). The previous examples are not comprehensive, and you are responsible for reading and agreeing to all of the provisions of these Terms as a condition of your access and use of the Horn Service.
2. Children Under 13. You may only create or use a Horn Account if you are (a) at least thirteen (13) years old, and (b) allowed by applicable law to enter into a binding contract. If you are not at least thirteen (13) years old, you must not access or use the Horn Website, the Horn Software and Apps, or the Horn Service. (But we hope you come back and join us after you turn thirteen!)
3. Privacy Policy and Acceptable Use Policy. Our Privacy Policy, located here (the "Privacy Policy"), explains how we collect and use your information, and our Acceptable Use Policy, located here (the "Acceptable Use Policy"), outlines your responsibilities when using the Horn Service. You agree to read and comply with the Acceptable Use Policy and the Privacy Policy. You acknowledge and agree that the provisions of the Privacy Policy and the Acceptable Use Policy are made a part of these Terms and are binding upon you and 8eo.
4. Updates to These Terms. As technology changes and as our business grows and develops, we may modify these Terms (including the Privacy Policy and the Acceptable Use Policy) from time to time. When we modify these Terms, we will give you notice by posting the amended Terms on the Horn Website and, if the changes meaningfully affect your rights or obligations, by e-mail (if you have provided us with your e-mail address as part of your Account Information) or by an alert within the Horn Software and Apps. The amended Terms will include an Effective Date, and the amended Terms will be effective on that date. However, any changes to the governing law or dispute resolution provisions set forth in Sections 16 and 17 will not apply to any disputes for which 8eo and you have received actual notice on before such Effective Date. If you continue to access or use the Horn Website or the Horn Service after the Terms are amended, you agree to be bound by the revised Terms. If you do not agree with the updated Terms, you agree that you will promptly disable your account and discontinue your use of the Service. You can access historical versions of these Terms and other policies at: archive.
5. Description of Horn Service. The Horn Service (referred to in these Terms as the "Service" or the "Horn Service") includes a real-time communication service and related systems and technologies, the Horn Website, the Horn Software and Apps, and all other services provided to you by 8eo. The Service allows you (and other users) to make and receive real-time digital audio transmissions to and from one or more other users (each, a "Horn Transmission"), which take place within one or more channels (each, a "Horn Channel"). You acknowledge and agree that the Horn Service is always evolving and that we may, at any time and without notice to you, add or remove features or functionality of the Service or modify or discontinue the Service, in whole or in part. The Horn Service (or some of its features) may not be available in all countries. The Horn Service may contain links to third party websites or advertisements or promotions for third party products and services. We are not responsible for any content, products, or services provided by others. The inclusion of any link to such sites or advertisements or promotions of such products or services does not imply endorsement by 8eo or its Affiliates.
6. Your Horn Account.
6.1. Registration. In order to use the Horn Service, you must register with 8eo and create an account (a "Horn Account"). Our registration process currently requires you to login using your account with Twitter, Google, or Facebook (each, a "Login Provider") and to create a Horn Handle. By creating a Horn Account, you agree to the terms of use, privacy policy, and other agreements between you and the Login Provider and you consent to the Login Provider sharing your information with us. The Login Provider will provide us with certain information about you (or associated with you) from your account with the Login Provider (an "Associated Account"), including, for example, your full name, profile picture, age, birthday, gender, language, country, e-mail address, profile URL, friend list, news feed, status updates, checkins (and other location information), hometown, current city, photos, videos, website, personal description (and your friends' birthdays, status updates, checkins (and other location information), hometowns, current cities, photos, videos, websites, and personal descriptions), Tweets from your timeline, the people you follow or who follow you, and other personal information. The Login Provider will provide us with information from your Associated Account at the time you create your Horn Account and on a continuing basis afterward. As used in these Terms, "Account Information" means all information associated with a user's Horn Account, including information from an Associated Account that is provided to us by a Login Provider, and any other information that the user provides to us in connection with the user's Horn Account. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, we retain the right, in our sole discretion, to suspend or terminate your Horn Account and your access to the Horn Service.
6.2. Horn Handle. When you create your Horn Account, you will be required to select a unique name (a "Horn Handle") that will be used to identify you in the Horn Service. The name you select must comply with the Acceptable Use Policy. You understand and agree that we may, at any time and without notice to you, disable, change, delete, or reclaim the Horn Handle that you select, and we may require to you to select a new Horn Handle. We may do this, for example, if we believe the Horn Handle you selected violates our Acceptable Use Policy or infringes the Intellectual Property Rights of any Person.
7. Using the Horn Service.
7.1. Permission to Use the Service. Subject to your compliance with these Terms (including the Acceptable Use Policy and the Privacy Policy), we grant you permission to access and use the Horn Service. The permission for you to use the Service is further conditioned on the following: (a) you will use the Service only for your personal use (including, if applicable, Your Company's personal use); (b) you will not permit any other Person to access or use the Service through your Horn Account; (c) you will not attempt to reverse engineer, alter, or modify any part of the Service, including the Horn Website and the Horn Software and Apps; (d) if you choose to purchase or subscribe to any Paid Services (as defined below), you will make all required payments; (e) you will not save, record, or copy any Horn Transmission (in whole or in part), except as expressly permitted for Channel Operators (as defined below) pursuant to Section 10.3; and (f) you will comply with all of the provisions of these Terms, the Privacy Policy, and the Acceptable Use Policy. If you violate the Terms of Use, the Acceptable Use Policy, or the Privacy Policy, your permission to use the Horn Service (including any Paid Subscriptions (as defined below)) will automatically terminate, and you will not be entitled to any refund of payments made to us. Your permission to access and use the Horn Service is personal, non-exclusive, non-assignable, non-sublicensable, and may be limited or revoked by us at any time. We reserve the right, in our sole discretion, to refuse service and/or to suspend or terminate your Horn Account.
7.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the login credentials (such as password and username, Horn Handle, or e-mail address) used to access your Horn Account (including your login credentials used to access your selected Login Provider) (your "Login Credentials"). You acknowledge and agree that you are responsible for any activities that occur through your Horn Account, whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your Horn Account and of any unauthorized use of your Horn Account. We will not be liable for your losses caused by any unauthorized use of your Horn Account, and you acknowledge and agree that you may be liable for the losses of the 8eo Parties or others due to such unauthorized use.
8. User Content.
8.1. Generally. As used in these Terms, "User Content" means all Account Information, all Horn Transmissions, and all content (including without limitation, text, photos, graphics, logos, audio, video, and other materials) that a user uploads, posts, sends, submits, transmits, or otherwise transfers to or through the Horn Service. You acknowledge and agree that we do not prescreen User Content and that we are not responsible for the content of any User Content, and we make no guarantees as to the validity, accuracy, or legal status of any User Content. Nevertheless, we may at any time, with or without notice to you, block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit any User Content.
8.2. Your Content. You represent and warrant to the 8eo Parties that your User Content complies (and will at all times continue to comply) with the Acceptable Use Policy. You acknowledge and agree that your User Content will be treated as non-confidential and non-proprietary, except as otherwise specifically provided in the Privacy Policy. You retain any ownership rights you have in your User Content, and nothing in these Terms limits your right to use your User Content outside of the Horn Service or your right to license or sell your User Content to others. You grant us a worldwide, royalty-free, non-exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your User Content (including Horn Transmissions) in any and all media or distribution methods (now known or later developed), to exercise all Intellectual Property Rights in and to your User Content, and to exercise Publicity Rights (as defined below) with respect to each identifiable Person in your User Content (the "Content License"). Subject to the Privacy Policy, the Content License permits us, for example, to use your User Content to provide and improve the Horn Service for you and other users, to market and promote 8eo and the Service, and to provide relevant offers and advertising. In addition, you acknowledge and agree that Channel Owners (as defined below) and Channel Operators (as defined below) may have the option to record the Horn Transmissions in their Horn Channels (each, a "Channel Recording"). You hereby consent to such recording of your Horn Transmissions, and you hereby grant each Channel Operator and Channel Owner who creates a Channel Recording a worldwide, royalty-free, non-exclusive, transferable, sublicensable, perpetual, and irrevocable license to use, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, distribute, communicate, and transmit your Horn Transmissions and to exercise all Publicity Rights with respect to your speech, voice, and sound-alike embodied in any Channel Recordings. You understand and agree that we may transfer, process, maintain, and store your User Content in any country (or in multiple countries), including countries other than your country of residence or the country or countries where you use the Service.
8.3. Third Party Access. You understand and agree that some or all of your User Content may be accessed and/or viewed or heard by other Horn Users (and other third parties). You hereby grant to each Horn User permission to access and view any of your User Content that is available through the Horn Service to such user (until the User Content is removed from the Service or the user no longer has access to the User Content through the Service). Some portions of the Horn Service may include options or controls to limit the sharing or visibility of your User Content, and we will respect the choices you make using those options or controls. We will only share your User Content with third parties as permitted by the Privacy Policy.
8.4. Third Party Rights. You represent and warrant to the 8eo Parties: (1) that you have the right (and have obtained any and all necessary permissions, consents, and authorizations) to grant us the Content License and to grant all other rights and licenses granted in these Terms, and (2) that the use of your User Content and the exercise of the Content License by the 8eo Parties (and their sublicensees) will not infringe the Intellectual Property Rights (as defined below) of any Person. In addition, you represent and warrant to the 8eo Parties: (a) that none of your User Content will contain third party copyrighted material or material that is subject to other third party Intellectual Property Rights unless you have written permission from the rightful owner of the materials (or you are otherwise legally entitled) to upload, post, send, submit, transmit, or otherwise transfer such materials as part of your User Content, to grant us the Content License, and to grant all other rights and licenses granted in these Terms; and (b) that you have the written consent, release, and/or permission of each and every identifiable Person in your User Content to use (and to grant us, as part of the Content License, the right to use) the Person's name, image, photo, portrait, voice, sound-alike, likeness, and persona in connection with your User Content.
9. Paid Services.
9.1. Generally. Certain options, upgrades, features, and other components of the Horn Service (each, a "Paid Service"), such as Paid Channels (as defined below) and additional features for Paid Channels (each, a "Channel Add-on"), are available only to users who have purchased subscriptions to such Paid Services (each, a "Paid Subscription"). The fees for Paid Services are set forth in the Horn Fee Schedule at /fees. If you choose to purchase any Paid Subscriptions, you are granted permission to use the applicable Paid Services in connection with your use of the Horn Service for the duration of your Paid Subscriptions. We may change the fees for our Paid Services at any time, but no such fee changes will apply to any of your Paid Subscriptions until such Paid Subscription is renewed.
9.2. Payment.
9.2.1. If you purchase any Paid Subscriptions, you acknowledge and agree that you will provide and maintain complete and accurate billing contact and payment information as requested by 8eo (your "Payment Information") as part of your Account Information. Subject to the Privacy Policy, your Payment Information may be transmitted to and stored by a third party payment processor.
9.2.2. You are responsible for making full and complete payment for all Paid Subscriptions. In no event are we responsible for any failure to process payment for or renewal of any Paid Subscriptions. In the event of a charge back by a credit card company, or any similar action by a payment provider (a "Charge Back"), you agree that we may suspend, cancel, or terminate your Paid Subscriptions and/or your Horn Account. If, within five (5) days of the Charge Back, you pay our then current reinstatement fee (see the Horn Fee Schedule at /fees) and all other payments due to us for your Paid Subscriptions, we will reinstate your Paid Subscriptions and your Horn Account. However, we reserve the right, for any reason, to refuse to reinstate your Paid Subscriptions and your Horn Account, in which case we will not accept your payment of the reinstatement fee.
9.3. Expiration and Renewal. Each Paid Subscription will automatically terminate on its expiration date unless we receive and accept full payment from you before such expiration date. Paid Subscriptions may be renewed by payment of the then current renewal fee for the applicable Paid Service (see the Horn Fee Schedule at /fees). You acknowledge and agree that it is your responsibility to keep and maintain your own records and reminders regarding when your Paid Subscriptions are scheduled to expire. As a convenience to you, we may send you a reminder notice informing you when the renewal fees for your Paid Subscriptions are due, but we have no obligation to do so. Unless you turn off the auto renew option, you agree that we may (but are not obligated) to attempt to renew each Paid Subscription within a reasonable period of time before its expiration date using the Payment Information (if any) associated with your Horn Account at our then current fee for such Paid Service (see the Horn Fee Schedule at /fees). The Paid Subscriptions for Channel Add-ons will automatically terminate upon the expiration or cancellation of the Paid Subscription for the associated Paid Channel, and no credit or refund will be issued in connection with such termination.
9.4. Cancellations and Refunds. All purchases of Paid Subscriptions are final. You may disable a Paid Subscription or disable your Horn Account at any time, but we will not issue you a refund. We reserve the right to cancel any of your Paid Subscriptions at any time and for any reason, including without limitation for your violation of any provision of these Terms (including the Acceptable Use Policy and the Privacy Policy). If we cancel any of your Paid Subscriptions or modify the Channel Name of your Paid Channel for any reason other than for a violation of these Terms, we will issue you a pro-rata refund for the remaining, unused portion of your Paid Subscription, which will be your sole and exclusive remedy in the event of such cancellation or termination.
10. Channel Owners and Operators.
10.1. Definitions. As used in these Terms:
10.1.1. "Paid Channel" means either a Horn Channel for which a Channel Owner (as defined below) has purchased a Paid Subscription or a Horn Channel owned by 8eo.
10.1.2. "Free Channel" means any Horn Channel other than a Paid Channel.
10.1.3. "Channel Owner" means a Horn User who has purchased a subscription to a Paid Channel.
10.1.4. "Channel Operator" means a Horn User who has the permission and ability to perform certain administrative functions with respect to the applicable Horn Channel. A Channel Owner is automatically a Channel Operator for the Channel Owner's Paid Channels.
10.2. Channel Names. The Horn User who creates a new Horn Channel, will have the option to select the name for that Horn Channel (the "Channel Name") and, in some cases, may have the option to include a logo or design for such Horn Channel (the "Channel Logo"). The Channel Name and Channel Logo must comply with all of the provisions of these Terms (including the Acceptable Use Policy).
10.3. Channel Recordings. Channel Owners may purchase a Paid Subscription which allows Channel Operators to record the Horn Transmissions that take place in the Channel Owner's Paid Channels. Channel Recordings are not hosted or stored by 8eo, and each Channel Operator is responsible for connecting his Horn Account to a compatible cloud storage service and for any fees or costs associated with the use of such service.
11. Intellectual Property Rights.
11.1. Generally. You acknowledge and agree that, except for User Content and except as otherwise expressly stated in these Terms, 8eo (or its licensors) own all Intellectual Property Rights in and to all content and materials displayed, transmitted, performed, included, or provided by us on or through the Horn Website and the Horn Service, including without limitation all text, titles, photos, graphics, logos, designs, audio and video transmissions and recordings, and other content (collectively, "Horn Materials"). Except as otherwise expressly provided in these Terms, we retain all rights in and to the Horn Service and the Horn Materials. As used in these Terms, "Intellectual Property Rights" means intellectual property rights arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (i) fictional business names, trade names, company and corporate names, trademarks and service marks (whether registered or unregistered, including any applications for registration of any of the foregoing), logos, Internet domain names, and trade dress rights, together with the goodwill associated with any of the foregoing (collectively, "Marks"); (ii) inventions, patent applications, and patents issued therefrom in the United States and in all other countries, including all continuations, divisionals, continuations-in-part, inventions registrations, re-examinations, registrations, renewals, utility models, reissues and the like corresponding thereto (collectively, "Patents"); (iii) copyrights and registrations and applications therefor (collectively, "Copyrights"); (iv) proprietary and confidential information which constitute trade secrets, such as proprietary and confidential know-how, inventions, discoveries, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, and data bases in each case excluding any of the foregoing to the extent the rights therein comprise or are protected by Copyrights or Patents (collectively, "Trade Secrets"); (v) publicity rights, including without limitation the right to use a Person's name, image, photo, portrait, voice, sound-alike, likeness, and persona for advertising, marketing, promotional, trade, business, and commercial purposes (collectively, "Publicity Rights"); and (vi) moral rights and privacy rights (collectively, "Other IP Rights").
11.2. Our Trademarks. The names 8eo, Horn, the > symbol, and the graphics, icons, logos, service names, designs, and layouts associated with the Horn Service are the trademarks, service marks, or trade dress of 8eo in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
11.3. Feedback. We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, suggestions, or questions about the Horn Service or any other product or service (collectively, "Feedback"). You agree not to send us any information or ideas that are sensitive or confidential, and you agree that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback in any and all media or distribution methods (now known or later developed), to exercise all Intellectual Property Rights in and to your Feedback.
Without limitation and notwithstanding anything to the contrary herein, we will have exclusive ownership of all present and future rights to the Feedback. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback. The provisions of Section 11.3 will continue to apply even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
12. Advertising. The Horn Service may include advertising, which may be targeted to you based on your User Content, your use of the Service, and other information. In exchange for us granting you permission to access and use the Service, you consent to 8eo (and our third party providers, partners, and affiliates) (a) placing such advertising in the Service, and (b) displaying such advertising in connection with the display of your User Content or Account Information.
13. Indemnification. As used in these Terms, "Affiliate" means any other Person, directly or indirectly controlling, controlled by or under common control with the subject Person, and "8eo Parties" means 8eo, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of any of the foregoing. You agree to indemnify, defend, and hold harmless the 8eo Parties from, against, and with respect to any and all liabilities, claims, losses, damages (including without limitation property damage and all incidental, consequential, punitive, special, and exemplary damages), injuries (including without limitation personal injury, sickness, and death), interest, fines, taxes, premiums, assessments, penalties, costs, and expenses (collectively, "Claims"), including without limitation any and all attorneys' fees, paraprofessionals' fees, and expenses incurred in the defense of Claims (whether or not a suit is instituted and, if so instituted, through all trial and appellate levels), arising out of or related to: (a) your use of and access to the Horn Service; (b) the use of your Horn Account (whether by you or any other Person); (c) your breach or violation of any provision of these Terms (including the Acceptable Use Policy and the Privacy Policy); (d) your use of Channel Recordings; (e) our exercise of any rights or licenses granted by you to us (including the use of your User Content or Feedback); (f) any inaccuracy in or breach of any of the representations or warranties made by you; (g) your violation or alleged violation of any law or infringement of any third party right, including without limitation any Intellectual Property Rights or privacy rights; (h) your negligence, recklessness, or willful misconduct; or (i) any claim that your use of the Horn Service caused damage to a third party. 8eo will have the exclusive right: (1) to select legal counsel to defend Claims, (2) to direct the defense or settlement of Claims, (3) to make, accept, or reject any offers of settlement of Claims, (4) to enter into any settlement, and (5) to admit or deny fault or liability. Your obligations under this Section will continue even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
14. Claims of Intellectual Property Infringement.
14.1. Generally. We respect the Intellectual Property Rights of others, and we require each of our users to do the same. We take claims of infringement of Intellectual Property Rights seriously, and we reserve the right, in our sole discretion, to block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit (collectively, "Remove" or "Removing") any User Content and to modify, disable, or delete Horn Handles, Channel Names, and Channel Logos. In appropriate cases and in our sole discretion, we may Remove User Content or modify, disable, or delete Horn Handles or Channel Names if properly notified that such User Content, Horn Handles, Channel Names, or Channel Logos infringes a third party's Intellectual Property Rights. It is our policy, in appropriate circumstances, to disable and/or terminate the Horn Accounts of users who are repeat infringers.
14.2. Acknowledgment, Release, and Waiver. You acknowledge that the Horn Service allows users to create, send, and receive real-time digital audio transmissions to and from one or more other users and that 8eo does not prescreen, approve, or store such Horn Transmissions. You further acknowledge and agree that we have no responsibility or liability to you for such Horn Transmissions, User Content, or Horn Handles, Channel Names, or Channel Logos created by you or any Horn Users. Notwithstanding any other provision in these Terms to the contrary, you, on your own behalf and on behalf of your Affiliates, officers, directors, shareholders, successors, heirs, and assigns, hereby forever release, acquit, discharge, and agree not to sue or institute any legal action against the 8eo Parties from, against, and with respect to, all claims, actions, liability, obligations, damages, causes of action (whether based in tort, contract, or on any legal or equitable ground or theory of recovery) arising from, related to, or associated with: (1) any acts or omissions by Horn Users; (2) the use, practice, copying, modification, adaptation, creation of derivative works of, storage, hosting, publishing, public performance, public display, distribution, communication, transmission, or transfer of User Content or Channel Recordings on or through the Service; (3) any Horn Handles, Channel Names, or Channel Logos created by Horn Users; (4) the use of Channel Recordings by Channel Operators or any third parties; or (5) the exercise of the Content License by the 8eo Parties and their sublicensees. Without limiting any of our rights to take other action described in these Terms, including without limitation, immediately Removing or modifying Infringing Content without notice, we will, within a reasonable period of time following our receipt in writing of a final, non-appealable court order finding that specific User Content or Horn Handles, Channel Names or Channel Logos created by Horn Users infringes a third party's Intellectual Property Rights ("Infringing Content"), Remove or modify such Infringing Content in the jurisdictions to which such order applies. The provisions of this Section 14.2 will continue to apply even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
14.3. Reporting Claims of Copyright Infringement.
14.3.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. 8eo will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Horn Service infringe your copyright, you may request removal of those materials (or access thereto) from the Horn Service by submitting written notification to the 8eo Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the "DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
8eo's designated Intellectual Property Agent to receive DMCA Notices is:
Lawrence T. Levine
PO Box 3739
Sarasota, FL 34230
+1 (848) 480 0100
legal@horn.co
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Horn Service is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
14.3.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with 8eo (a "DMCA Counter-Notice") by submitting written notification to the 8eo Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include substantially the following:
The DMCA allows 8eo to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Horn Service was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
14.4. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the Horn Service and/or any Horn Handles, Channel Names, or Channel Logos infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content, Horn Handles, Channel Names, or Channel Logos (or access thereto) from the Horn Service by submitting written notification to the 8eo Intellectual Property Agent (designated above). The written notice (an "Infringement Notice") must include all of the following:
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including without limitation, temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user or Channel Operator who is responsible for the applicable Alleged Infringing Content (the "Responsible Party") and request that such Responsible Party provide a written response to the party alleging infringement (the "Asserting Party") or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party's contact information (name, address and e-mail address). If the Responsible Party's response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party shall communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we shall Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 14.2 above.
WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY USER CONTENT, HORN HANDLE, CHANNEL NAME, CHANNEL LOGO, HORN TRANSMISSIONS, AND/OR ANY OTHER CONTENT OR MATERIALS THAT ARE POSTED, DISPLAYED, OR TRANSMITTED BY ANY PERSON IN CONNECTION WITH THE HORN WEBSITE AND/OR THE HORN SERVICE (COLLECTIVELY, "THIRD PARTY MATERIALS") OR FOR ANY FAILURE TO REMOVE ANY THIRD PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF USE AND SUBJECT TO APPLICABLE LAW, ANY PERSON WHICH ALLEGES THAT ANY THIRD PARTY MATERIALS INFRINGES ITS OR A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS EXPRESSLY AND FOREVER WAIVES ALL SUCH INFRINGEMENT CLAIMS AGAINST THE 8EO PARTIES AND AGREES THAT ITS SOLE RECOURSE WITH RESPECT TO ANY SUCH CLAIMS SHALL BE AGAINST THE PERSON OR ENTITY WHO POSTED OR IS OTHERWISE RESPONSIBLE FOR SUCH THIRD PARTY MATERIALS.
HORN HAS NO RESPONSIBILITY OF LIABILITY TO ANY PERSON FOR REMOVING ANY THIRD PARTY MATERIALS. EACH USER EXPRESSLY AND FOREVER WAIVES ALL CLAIMS AGAINST THE 8EO PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY THIRD PARTY MATERIALS.
You agree that if you knowingly materially misrepresent that User Content, Horn Handles, Channel Names, Channel Logos, or activity on the Horn Service is infringing Intellectual Property Rights, you will be held liable for costs and fees (including attorneys' fees) and other damages incurred by 8eo in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
15. Disclaimers and Limitation of Liability - PLEASE READ CAREFULLY: This Section 15 limits the liability of the 8eo Parties. The provisions of this Section apply to the maximum extent permitted under applicable law. Some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
15.1. You understand that we cannot and do not guarantee or warrant that User Content, files, or other content or materials available for downloading from the Internet or transmitted through the Service will be free of viruses, malware, or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus and anti-malware protection and for maintaining a means external to the Horn Service for any reconstruction of any lost data. You agree that you will not use the Service in connection with any mission-critical, emergency, life-sustaining, or life-saving systems or for any such purposes. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, MALWARE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT, DAMAGE, OR DELETE YOUR DEVICES OR DATA DUE TO YOUR USE OF THE SERVICE OR YOUR ACCESSING OR DOWNLOADING ANY USER CONTENT, HORN MATERIALS, OR OTHER MATERIALS AVAILABLE ON OR THROUGH THE HORN SERVICE OR LINKED TO FROM THE HORN SERVICE.
15.2. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY OF ANY KIND TO YOU OR OTHERS AS A RESULT OF ANY LOSS, THEFT, DELETION, DESTRUCTION, ALTERATION, OR CORRUPTION OF, DAMAGE, UNAUTHORIZED ACCESS TO, OR FAILURE TO TRANSMIT, STORE, BACKUP, OR ENCRYPT ANY USER CONTENT OR ANY DATA OR FILES STORED ON ANY DEVICE USED TO ACCESS THE HORN SERVICE OR STORED IN ANY THIRD PARTY SERVICE OR ACCOUNT CONNECTED TO YOUR HORN ACCOUNT.
15.3. YOUR USE OF THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, AND THE HORN SERVICE AND THE HORN MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) IS AT YOUR OWN RISK. THE HORN SERVICE AND THE HORN MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) ARE PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
15.4. THE 8EO PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF THE 8EO PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE). WITHOUT LIMITING THE FOREGOING, NONE OF THE 8EO PARTIES REPRESENTS OR WARRANTS THAT THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE)WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
15.5. The Horn Service allows users to make and receive real-time digital audio transmissions to and from one or more other users, and 8eo does not control or pre-screen the User Content of such Horn Transmissions. Some content may prove to be offensive, harmful, illegal, or deceptive. There is also the risk that you may interact with underage persons or people acting under false pretense on or through the Horn Service. There may also be risks associated with dealing across international boundaries and with foreign nationals. You agree to accept these risks and you also acknowledge and agree that the 8eo Parties will not be responsible for any damages or injury that may result from your use of the Horn Service.
15.6. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE 8EO PARTIES WILL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON ARISING OUT OF, RELATED TO, OR ASSOCIATED WITH (A) YOUR USE OF THE HORN SERVICE, (B) THE USE OF THE HORN SERVICE BY ANY OTHER PERSON, OR (B) THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.7. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF THE 8EO PARTIES TO YOU OR ANY OTHER PERSON FOR ANY REASON AND UPON ANY CAUSE OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) WILL BE LIMITED TO ACTUAL DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON‑INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
15.8. You and 8eo acknowledge that the disclaimers and limitations of liability in this Section 15 represent the bargained for allocations of risk, and that the consideration received by 8eo from you under these Terms represents such allocations of risk. You acknowledge and agree: (a) that neither 8eo nor any person or entity acting, or purporting to act, on behalf of 8eo has made any representations to you other than those representations expressly made by 8eo in these Terms, and (b) that in connection with your acceptance of these Terms, you have not relied upon any representations made by 8eo or any person or entity acting, or purporting to act, on behalf of 8eo other than those representations and warranties expressly made by 8eo in these Terms.
15.9. SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS SECTION 15. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION 15 WILL CONTINUE TO APPLY EVEN IF YOU STOP USING THE HORN SERVICE AND WILL SURVIVE THE DELETION, EXPIRATION, OR TERMINATION OF YOUR HORN ACCOUNT OR THESE TERMS.
16. Governing Law and Interpretation. These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the applicable federal laws of the United States, without regards to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. If any ambiguity or question of intent or interpretation arises, these Terms will be construed as if drafted jointly by 8eo and you, and no presumptions or burden of proof will arise favoring or disfavoring 8eo or you by virtue of authorship of any of the provisions of these Terms. We retain all rights at law and in equity to enforce the provisions of these Terms in accordance with applicable laws.
17. Dispute Resolution – PLEASE READ CAREFULLY: This Section 17 includes important provisions that affect your legal rights, including, for example, a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, an agreement that all controversies, claims, and disputes, except for certain claims in small claims court, will be decided by binding arbitration instead of by a court, and an agreement that any arbitration or court proceedings will take place only in Charlottesville, Virginia, United States.
17.1. Initial Dispute Resolution. We believe you will have a positive experience using the Horn Website, the Horn Software and Apps, and the Horn Service, and we invite you to contact us about any questions or issues you experience. We want to address any concerns you may have about the Service without needing to engage in a formal legal process. Before initiating an arbitration proceeding or filing a lawsuit, you agree to attempt to resolve the dispute informally by e-mailing us at legal@horn.co. You and 8eo agree to work in good faith to settle any dispute, claim, controversy, question, or disagreement directly through consultation and good faith negotiations, which is a prerequisite to either you or 8eo initiating arbitration or a lawsuit.
17.2. Agreement to Binding Arbitration. If you and 8eo do not reach a mutually agreed resolution within a period of thirty (30) days from the time informal dispute resolution is first pursued pursuant to Section 17.1, then either you or 8eo may initiate binding arbitration. Any controversy, dispute, or claim arising out of or relating to (a) these Terms (including, but not limited to, the interpretation and scope of the arbitration provisions in this Section 17.2 and the arbitrability of the controversy, dispute, or claim), (b) the formation, performance, or breach of these Terms, or (c) alleged infringement by 8eo or the Service of any Intellectual Property Rights, shall be settled by binding arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. (The AAA's rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879.) The arbitrator(s) will have the power to rule on any challenge to the jurisdiction of the arbitrator(s) or to the validity or enforceability of any portion of the agreement to arbitrate. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $1 Million United States Dollars, in which case the dispute shall be heard by a panel of three arbitrators. In arbitrations having one arbitrator, the arbitrator will be selected by the AAA. In arbitrations with three arbitrators, within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The place of arbitration shall be Charlottesville, Virginia, United States, and the arbitration shall be conducted in English. The arbitration shall be governed by the laws of the Commonwealth of Virginia and the applicable federal laws of the United States. The arbitrator(s) will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by applicable laws. The arbitrator(s) may award injunctive relief for infringement of Intellectual Property Rights or any violation of the Acceptable Use Policy. The arbitrator(s) shall not award consequential, punitive, special, or exemplary damages in any arbitration initiated under this Section 17.2. Each party shall bear its own costs and expenses (including attorneys' fees) and an equal share of the arbitrators' and administrative fees of arbitration. The award of the arbitrator(s) (the "Underlying Award") shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties, except that that the parties may disclose such information to the extent required by law and to their respective agents and professional advisors who have a legitimate need to know such information. The Underlying Award may be appealed pursuant to the AAA's Optional Appellate Arbitration Rules ("Appellate Rules"), and the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
17.3. Class Action and Class Arbitration Waiver. You and 8eo further agree that any lawsuit or arbitration shall be conducted in your (including, if applicable, Your Company's) and 8eo's individual capacities only and not as a class action or other representative action, and you and 8eo expressly waive the right to file a class action or seek relief on a class basis. If the arbitrator(s) or any court determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then Section 17.2 will not apply and will not be considered a part of these Terms and the parties shall be deemed not to have agreed to arbitrate disputes.
17.4. Right to Opt Out. You have the right to opt out of the arbitration and class action waiver provisions in Sections 17.2 and 17.3 by completing, signing, and mailing the Opt Out Form located here within sixty (60) days after the date you first began using the Service. In order for the Opt Out form must be completed in its entirety and signed by you, and you understand and agree that you are responsible for retaining proof of mailing and delivery. If you exercise your option to opt out as provided in this Section 17.4, then Sections 17.2 and 17.3 will not apply and will not be considered a part of these Terms.
17.5. Limited Exceptions.
17.5.1. Small Claims Court Claims. Notwithstanding Section 17.2 above, if you and 8eo do not reach a mutually agreed resolution within a period of thirty (30) days from the date informal dispute resolution is first pursued pursuant to Section 17.1, then either you or 8eo may assert claims, if they qualify, in the small claims division of the General District Court in Charlottesville, Virginia, United States.
17.5.2. Injunctive Relief. You acknowledge and agree that any violation of the Acceptable Use Policy may cause irreparable harm to the 8eo Parties (or other Horn Users), for which monetary damages would not be an adequate remedy. Therefore, notwithstanding Sections 17.1 and 17.2 above, you agree that: (a) 8eo will be entitled to immediate injunctive relief to enjoin any actual, suspected, threatened, or potential violation by you of the Acceptable Use Policy; (b) 8eo will be entitled to such injunctive relief without any obligation (i) to post a bond or other security, or (ii) to prove actual damages or to prove that monetary damages will not provide an adequate remedy; (c) the provisions of Sections 17.1 and 17.2 will not apply to any action by 8eo seeking such injunctive relief; and (d) you will not oppose or otherwise challenge the appropriateness of injunctive relief or the entry by a court of competent jurisdiction of an order granting injunctive relief.
17.6. Service of Process. If your Account Information does not contain your current and accurate physical address (or if we are unable, after reasonable efforts, to effect service of process on you at such physical address), you hereby irrevocably agree to accept service of process by any means of communication associated with your Horn Account or through any contact information in your Account Information, including without limitation, service by U.S. mail, e-mail, SMS, messages or alerts displayed or sent to you through the Horn Website or the Horn Software and Apps, or social media messages, posts, or tweets, and you waive any objections to service of process by such methods.
17.7. Time Period for Bringing Claims. YOU MUST COMMENCE OR FILE ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO (A) THESE TERMS, (B) THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE (OR THE USE OF ANY OF THE FOREGOING BY YOUR OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY 8EO OF ANY OF OBLIGATIONS UNDER THESE TERMS, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY ANY OF THE 8EO PARTIES OR THE HORN SERVICE OF ANY INTELLECTUAL PROPERTY RIGHTS WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED. YOU EXPRESSLY WAIVE THE RIGHT TO COMMENCE OR FILE ANY SUCH CLAIM OR ACTION UNDER ANY LONGER STATUTE OF LIMITATIONS.
17.8. Venue for Judicial Actions. To the extent that the provisions of Section 17.2 do not apply (for example, if you exercise your right to opt out of the arbitration provisions by giving notice as required in Section 17.4, or if any arbitrator(s) or court determines that any of the provisions of Sections 17.2 or 17.3 are void or unenforceable, or for small claims brought pursuant to Section 17.5.1, or for requests by 8eo for injunctive relief pursuant to Section 17.5.2), you and 8eo agree as follows:
17.8.1. Any and all claims and disputes arising out of or relating to (a) these Terms, (b) the Horn Website, the Horn Software and Apps, or the Horn Service (or the use of any of the foregoing by your or any other Person), (c) the performance or non-performance by you or 8eo of any of obligations under these Terms, or (d) actual or alleged infringement by you, any of the 8eo Parties or Affiliates, or the Horn Service of any Intellectual Property Rights, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in Charlottesville, Virginia, United States. YOU AND 8EO BOTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN ANY SUCH COURT (AND IN ANY OF THE APPROPRIATE APPELLATE COURTS THEREFROM) AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION (INCLUDING WITHOUT LIMITATION ANY OBJECTION BASED ON INCONVENIENT FORUM) WHICH YOU OR 8EO MAY NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT.
17.9. Waiver of Jury Trial. YOU AND 8EO IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU OR 8EO MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (A) THESE TERMS, (B) THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE (OR THE USE OF ANY OF THE FOREGOING BY YOUR OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR 8EO OF ANY OF OBLIGATIONS UNDER THESE TERMS, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY YOU, ANY OF THE 8EO PARTIES OR AFFILIATES, OR THE HORN SERVICE OF ANY INTELLECTUAL PROPERTY RIGHTS. YOU CERTIFY AND ACKNOWLEDGE THAT: (1) NONE OF THE 8EO PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT 8EO WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (4) YOU HAVE BEEN INDUCED TO ENTER INTO THESE TERMS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION.
18. Termination. We reserve the right, without any liability to you, to Remove your User Content (in whole or in part), to modify, disable, or delete your Horn Handle and Channel Names, to suspend, delete, or terminate your Horn Account (or any of your Paid Subscriptions), and to suspend or terminate your permission to access and use the Horn Website, the Horn Software and Apps, and the Horn Service for violation of these Terms (including the Acceptable Use Policy and the Privacy Policy), for failure to pay for your Paid Subscriptions when they are due, or for any other reason. If you wish to end your relationship with us, you may disable your Horn Account at any time. We reserve the right to retain historical records and information related to your Horn Account for financial, security, legal, and other purposes. These Terms and all rights and permission granted by 8eo to you will automatically terminate upon the deletion or termination of your Horn Account. Any termination, cancellation, or expiration of these Terms notwithstanding (and notwithstanding the deletion or termination of your Horn Account or your stopping using the Horn Service), provisions which are by their terms intended to survive and continue will so survive and continue, including without limitation Sections 8.1, 8.2, 8.4, 11, 13, 14, 15, 16, and 17.
19. Miscellaneous.
19.1. Definitions. As used in these Terms:
19.1.1. "Laws" (or "laws") means all constitutions, treaties, ordinances, statutes, codes, rules, regulations, orders, injunctions, writs, or decrees of any government or political subdivision or agency thereof, or any court or similar entity established by any thereof, and the common law arising from final, non-appealable decisions of any government authority.
19.1.2. "Person" (or "person") means any individual, corporation, limited liability company, partnership, limited liability partnership, association, joint-stock company, trust, unincorporated organization, joint venture, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
19.1.3. "United States" and "U.S." means the United States of America.
19.2. Relationship Between You and 8eo; No Third-Party Beneficiaries. Nothing in these Terms will be construed as creating any partnership, joint venture, franchise, employment relationship, or agency relationship in any way between you and any of the 8eo Parties. You will not have apparent or actual authority to bind any of the 8eo Parties to any debt, contract, or other arrangement. Nothing in these Terms is intended, nor will be deemed, to confer any rights or remedies upon any Person other than the 8eo Parties and you.
19.3. Due Authorization. Each party represents, warrants and agrees that the acceptance and performance of this Agreement have been duly approved by all necessary corporate action and are not in violation of any other agreement such party has with any third parties; and that this Agreement is a valid binding, legal obligation of each party, enforceable in accordance with its terms.
19.4. Further Assurances. You agree to execute, acknowledge, and deliver all such further documents, and take such further action, as may be reasonably required to carry out and consummate the transactions contemplated by these Terms.
19.5. Non-Waiver. The failure of you or 8eo to exercise or enforce any right or provision of these Terms will not operate as a waiver of your or our right to do so later.
19.6. Severability. If any provision of these Terms is finally determined to be void, unenforceable, invalid, or otherwise contrary to law or equity, you and 8eo agree to reform (or as necessary, authorize the arbitrator(s) or court to reform) these Terms to the extent necessary to cure (or if necessary, delete) such provision, and that the remainder of these Terms that can be given effect without the benefit of such provision will be given effect.
19.7. No Assignment. These Terms are personal to you. Neither these Terms nor any of your rights or obligations may be sold, transferred, delegated, or assigned by you without our prior written consent, and any attempt to do so without such consent will be void, and no rights will devolve by operation of law or otherwise upon any assignee, receiver, liquidator, trustee, or other person. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the Parties and their respective successors, assigns, and legal representatives.
19.8. Headings, Gender, and Number. The descriptive headings in these Terms are inserted for convenience only and do not constitute a part of these Terms. Throughout these Terms, wherever the context requires or permits, the neuter gender will be deemed to include the masculine and feminine, and the singular number to include the plural, and vice versa.
19.9. Entire Agreement. These Terms contain the entire agreement and understanding between you and us with respect to the transactions contemplated hereby, and these Terms supersede and replace any other prior or contemporaneous agreements, terms, or conditions applicable to the subject matter of these Terms.
20. Contacting Us. If you have any questions about this Terms of Service Agreement (including the Privacy Policy and the Acceptable Use Policy), the Service, or your Horn Account, you may contact us by mail at P.O. Box 3739, Sarasota, FL 34230.
HORN ACCEPTABLE USE POLICY
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
This Acceptable Use Policy is part of the Terms of Service Agreement, located here (the "Terms"). Please read this Acceptable Use Policy and the Terms carefully to understand our policies for how you may use the Horn Service. By accessing or using the Horn Website, the Horn Software and Apps, or the Horn Service (as defined in the Terms), you agree to be bound by all of the provisions of the Terms, including this Acceptable Use Policy. Except as otherwise defined herein, all terms used in this Acceptable Use Policy have the meanings set forth in the Terms.
1. Overview. We respect the safety and rights of others, and we require each of our users to do the same. In order to comply with legal requirements and to provide a better Horn experience for all of our users, you must comply with all of the provisions of this Acceptable Use Policy. In general, you must not use the Horn Service, provide any User Content, or create or use any Horn Handles or Channel Names in any way that infringes or violates the rights of 8eo or any other Person, violates the law, or is likely to do those things.
We may modify this Acceptable Use Policy from time to time. Changes to this Acceptable Policy will be made and will become effective as described in Section 4 of the Terms.
2. Intellectual Property Rights.
2.1. Generally. You are not allowed to use the Horn Service in any way that infringes the Intellectual Property Rights (as defined in the Terms) of 8eo or any other Person, and you represent to us that your User Content, your Horn Handle, your Horn Channel Names (any Channel Names you create, own, or control), your Horn Channel Logos (any Channel Logos that you create, own or control) and any other Third Party Materials that you post, display or otherwise make available on or through the Service do not infringe anyone's Intellectual Property Rights.
2.2. Trademarks.
2.2.1. What is a Trademark? A trademark is any word, slogan, symbol or design (such as a logo), or sound that is used by an individual, business, or organization to identify its goods or services and to distinguish them from those created, provided, or sold by others. The purpose of trademark law is to prevent consumers from being confused about who provides or is affiliated with a product or service. The owner of a trademark has the right to prevent others from using its trademarks (or similar trademarks) in a way that is likely to confuse people into thinking that the person using the trademark is the trademark owner or has a relationship with the trademark owner or that the trademark owner approves or endorses the other person's products or services.
2.2.2. Using Trademarks. Your Horn Handle and the Channel Names and Channel Logos you create or control must not:
· Use any of the 8eo trademarks or copyrighted materials (including the names 8eo and Horn and the associated logos) except as expressly permitted by the Terms or with our prior written permission;
· Impersonate or attempt to impersonate any of the 8eo Parties or our employees;
· Use the name of another person, organization, or brand with the intent to impersonate that person, organization, or brand;
· Use anyone else's trademarks in any way that is likely to cause confusion about your relationship with the owner of the trademark or gives the impression that the owner of the trademark approves or endorses you, your User Content, or your Horn Chanel; or
· Be offensive, vulgar, or obscene.
We reserve the right to refuse registration of, or to cancel, remove, or change, any Horn Handle, Channel Name, or Channel Logo in our sole discretion.
2.3. Copyrights. Copyright law protects original works of authorship (such as drawings, photos, music, books, and audiobooks). Copyright can protect the words or images that express an idea, but not facts or ideas themselves. Your use of the Service (including your User Content and Channel Logos) must not infringe anyone's copyrights. You are not allowed to use the Service or any Horn Channel to engage in webcasting or for Internet radio, or otherwise use the Service or any Horn Channel primarily for streaming any copyrighted music, movie soundtracks, books, audiobooks, or other copyrighted sound recordings unless you have the written permission of the copyright owner.
3. Horn Channels for Fans, Commentary, and Parody. If you wish to use a Horn Channel that you create or control as a fan channel or for the purpose of commentary about or parody of another person, organization, team, or brand, you must comply with the rules listed below:
3.1. Channel Name. The Channel Name must not be the exact name of the person, organization, team, or brand that is the subject of the Horn Channel (unless you have written permission). If the Channel Name does include such a name, it must also include a distinguishing word such as "unofficial," "fan", "fake", "not", or "parody" to make clear that the Horn Channel is not provided, approved, endorsed, or sponsored by the subject.
3.2. Channel Logo. The Channel Logo must not be the exact trademark or logo of the person, organization, team, or brand that is the subject of the Horn Channel.
3.3. Channel Description. The Channel Description must include a statement that clearly explains that the Horn Channel is not provided, approved, endorsed, or sponsored by the subject. Appropriate examples include: "Unofficial Fan Channel", "This Horn Channel is not affiliated with...", "This Horn Channel is not endorsed or approved by...", and "Parody Channel about..."
Your Horn Channel may infringe another person's trademark rights even if you follow the above rules, and you understand and agree that you are solely responsible for complying with all applicable laws and for ensuring that you do not infringe the trademark rights (or other rights) of any other person. If you are uncertain whether any particular use would violate anyone's rights, you should consult with an attorney.
4. Safety and Rights of Others. You agree that you will not:
· Use the Horn Service for the purpose of exploiting or harming (or attempting to exploit or harm) minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
· Transmit spam, junk mail, chain letters, pyramid schemes, or the like through the Horn Service;
· Use any software or other technology to attempt to profile or identify any Horn user based on the user's speech patterns, voice, or other audio characteristics associated with the user;
· Transmit through the Service any other person's private or sensitive information, including, for example, Social Security numbers or taxpayer identification numbers, passport numbers, driver's license numbers or other government-issued identification numbers, bank account numbers, credit or debit card numbers, login or authentication credentials (such as passwords), non-public contact information (including phone numbers, street or mailing addresses, and e-mail addresses), addresses or locations that are considered and treated as private, images or videos that are considered and treated as private under applicable laws, or other similar information;
· Transmit through the Service any other person's voice or sound-alike without that person's knowledge and consent;
· Use the Horn Service to engage in phishing;
· Use the Horn Service to publish falsehoods or misrepresentations that could damage or harm 8eo or any other person;
· Submit any User Content that is obscene, defamatory, libelous, slanderous, threatening, harassing, abusive, embarrassing, hateful, or racially or ethnically offensive to any other person, or that is unlawful or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; or
· Use the Horn Service to stalk, harass, or impersonate any person.
5. No Disruptive Activities. We want all of our users to enjoy a high quality experience when using the Horn Service. You agree that you will not:
· Send any User Content to or through the Horn Service that does not comply with this Acceptable Use Policy;
· Access or use the Horn Service using the Horn Account of another user;
· Circumvent, compromise, or undermine the security or integrity of the Horn Website, the Horn Software and Apps, or the Horn Service, or attempt to do so;
· Probe, scan, or test the vulnerability of the Horn Website, the Horn Software and Apps, the Horn Service, or an systems, networks, servers, computers, devices, or equipment owned or controlled by any of the 8eo Parties or our users;
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Horn Website, the Horn Software and Apps, the Horn Service, or any server, network, computer, device, system, or database owned or controlled by any of the 8eo Parties (or any Horn user) or related to, associated with, or connected to the Horn Service;
· Use any automated device, process, or means (such as robots or spiders) to access or use the Horn Service for any purpose, including monitoring or copying any User Content or Horn Materials;
· Attack the Horn Website or the Horn Service via a denial-of-service or distributed denial-of-service attack;
· Use the Horn Service in any manner that we believe could disable, overburden, damage, impair, or interfere with the proper operation of the Service;
· Interfere with or disrupt the performance or integrity of the Service or any data transmitted by or through the Service;
· Engage in any other conduct that, in our determination, restricts or inhibits anyone's use or enjoyment of the Service (including the ability of other users to engage in real-time conversations through the Service) or that may harm any of the 8eo Parties or our users or expose the 8eo Parties or our users them to liability; or
· Transmit any viruses, Trojan horses, worms, malware, or other material which is malicious or technologically harmful through the Horn Service.
6. Banned Users. We reserve the right to permanently ban any user who violates this Acceptable Use Policy (or any other provision of the Terms). You agree that if you are banned you will not, at any time after being banned, access or use the Horn Website, the Horn Software
7. Adult Content. Users are prohibited from uploading, posting, or transmitting any User Content that includes visual depictions of nudity, pornography, sexual acts, the consumption of illegal substances, or acts of violence, or any visual content that is inappropriate for minors.
8. Contacting Us. If you have any questions about this Acceptable Use Policy, or would like to report or flag objectionable material you may contact us by mail at P.O. Box 3739, Sarasota, FL 34230 or by email to legal@horn.co.
HORN PRIVACY POLICY
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
This Privacy Policy is part of the Terms of Service Agreement, located here (the "Terms"). Please read this Privacy Policy and the Terms carefully to understand our policies and practices regarding how we use your information. By accessing or using the Horn Website, the Horn Software and Apps, or the Horn Service (as defined in the Terms), you agree to be bound by all of the provisions of the Terms, including this Privacy Policy. Except as otherwise defined herein, all terms used in this Privacy Policy have the meanings set forth in the Terms.
1. Introduction. 8eo respects your privacy and we are committed to protecting it through compliance with this Privacy Policy. This Privacy Policy describes the types of information we may collect through your use of the Horn Service and our practices for collecting, using, maintaining, protecting, and sharing that information. This Privacy Policy applies to all information that we collect through the Horn Website, the Horn Software and Apps, and/or the Horn Service. This Privacy Policy does not apply to information that other Horn Users collect about you through your use of the Horn Service (such as the things you say while talking in a Horn Channel). This Privacy Policy does not apply to information we may collect from you or about you in other ways, including through e-mails you may send to us or through third parties.
2. Updates to Privacy Policy. As technology changes and as our business grows and develops, we may modify this Privacy Policy from time to time. Changes to this Privacy Policy will be made and will become effective as described in Section 4 of the Terms.
3. Children Under Age 13. We are committed to protecting the privacy of children under the age of thirteen (13) years (each a "Child" and collectively, "Children"). Access to and use of the Horn Website, the Horn Software and Apps, and the Horn Service by Children are prohibited by the Terms. The Horn Service is not designed for or marketed to Children, and we do not knowingly collect Personal Information (as defined below) from Children. If we learn we have collected or received Personal Information from a Child, we will delete that information. If you believe we might have any information from or about a Child, please contact us at: legal@horn.co.
4. Definitions. As used in this Privacy Policy:
4.1. "Personal Information" means personally-identifiable information (information relating to an individual that can be used to identify, locate, or contact that individual, alone or when combined with other personal or identifying information), such as: name, home or physical address, e-mail address, phone number, or personal characteristics (such as photos, fingerprints, and handwriting), and any Sensitive Information (as defined below), or any other information about an individual that we collect through the Horn Service and maintain in personally identifiable form in combination with other personally-identifiable information.
4.2. "Sensitive Information" means Social Security numbers, passport numbers, driver's license numbers, bank account numbers, credit or debit card numbers, login or authentication credentials (such as passwords), or other similar information.
4.3. "Non-Personal Information" means information or content other than Personal Information, including, for example, aggregated information about our users and other information that does not identify any individual.
5. Types of Information Collected.
5.1. Information You Provide. When you create and use your Horn Account, you may provide us with a wide variety of information, such as your name, postal address, physical address, e-mail address, phone number, billing and payment information, transaction history for your purchases of Paid Subscriptions, your search queries within the Service, messages you send us, and your User Content (as defined in the Terms), and other types of information.
5.2. Information From Your Login Provider. By logging in to the Horn Service through your Login Provider (as defined in the Terms), you give us permission to access, store, and use any information that the Login Provider shares with us from your Associated Account (as defined in the Terms). This information may be provided to us when you create your Horn Account and on a continuing basis until your Horn Account is deleted (or until you disable our access using your Login Provider's settings). We will store and use such information in accordance with this Privacy Policy and in accordance with any applicable rules in the agreement between us and your Login Provider.
5.3. Visitor Information. We may automatically collect information about you when you use the Horn Website, the Horn Software and Apps, and the Horn Service, such as the pages, Horn Channels, and other materials you access, the amount of data transferred, the links you click, the amount of time you spend interacting with each page and Horn Channel, your GPS location data, and other information about your interactions with the Horn Website, the Horn Software and Apps, and the Horn Service, as well as certain standard information that your browser sends to every website that you visit, including your Internet Protocol (IP) address, operating environment (such as browser type and version, browser plugins installed, operating system version, regional and language settings, screen size and/or resolution, windows size, and page size), access dates and times, and referring websites. We may also collect diagnostic information, including without limitation device hardware and operating system information, device state information, unique device identifiers, information relating to how the Horn Website and the Horn Software and Apps function on the device you use to access the Horn Service, and the physical location of such device at the time of a crash. We may share such diagnostic information and other Non-Personal Information with our service providers to diagnose and improve the Horn Website, the Horn Software and Apps, and the Horn Service. The Horn Service may use cookies, Flash cookies, web beacons, and other technologies for a variety of purposes, such as saving and retrieving information about you, your visit, and assisting in displaying relevant promotions and advertising to you. We may use such technologies to share Non-Personal Information with third parties or to retrieve Non-Personal Information from third parties.
5.4. Google Analytics. We may, from time to time, use a tool called "Google Analytics" (including Google Analytics Demographics and Interest Reporting features) to collect information about your use of the Horn Service, which helps us provide content that is relevant to you and optimized for the devices that you use (such as smartphones and tablets). We respect and value your privacy, and we never combine the information collected through the use of Google Analytics with Personal Information. We use the information we receive from Google Analytics only to improve the Horn Service and our content and marketing. Google's use and sharing of information collected by Google Analytics about your visits to this site is restricted by the Google Analytics Terms of Use (http://www.google.com/analytics/tos.html) and the Google Privacy Policy (http://www.google.com/privacypolicy.html). You can opt-out of Google Analytics for Display Advertising and customize Google Display Network ads using Google's Ad Settings (https://www.google.com/settings/ads) tool. As an added privacy measure, you can use the Google Analytics Opt-out Browser Add-on (https://tools.google.com/dlpage/gaoptout/).
6. Use of Non-Personal Information. We may use Non-Personal Information (including, for example, aggregated information about our users or information that does not identify any individual) for any purposes whatsoever (including without limitation, advertising, marketing, enhancing, designing, or developing products and/or services, and research), and we may share Non-Personal Information with others, including our partners, affiliates, and service providers.
7. Cookie Policy. Horn uses cookies and other similar technologies, such as HTML5 local storage, to provide the Horn Website and Horn Service.
7.1. Cookies and Local Storage. Cookies are small text files placed onto your device when you visit and interact with the Horn Website. Local storage is a technology that allows a website or application to store information locally on your device. These technologies enable us to provide and enhance your experience using the Horn Service.
7.2. How Horn Uses Cookies and Local Storage. We use these technologies to provide the Horn Service to you and to analyze and improve the Horn Website, the Horn Software and Apps, and the Horn Service. Our uses generally fall into one of the following categories:
7.2.1. Essential Processes and Security: To enable essential functions of the Horn Service, such as to facilitate logging you in to the Horn Service, facilitating your purchase of Paid Channels and Channel Add-ons, protecting your security, and helping us fight spam, abuse, and violations of our Acceptable Use Policy.
7.2.2. Preferences: To remember information about your browser and your preferences.
7.2.3. Performance, Analytics, and Research: To help us understand and measure how you use the Horn Website and the Horn Software and Apps and to improve the Horn Service.
7.2.4. Advertising: To help us deliver ads, measure their performance, and make them more relevant to you.
7.3. Blocking and Removing Cookies. We are committed to protecting your privacy, as described in this Privacy Policy. Most browsers allow you to modify your settings to accept or deny all cookies or to request your permission each time a website attempts to place a cookie on your device, and most browsers allow you to delete cookies that have already been placed on your device. However, the Horn Service will not function properly if you prevent it from placing cookies on your device.
8. Location Information. We will not share your precise location information in combination with your Personal Information with third parties (except we may share such information with law enforcement or as provided in Section 9.3 below). We may provide more generalized location information (such as county, state, city or event location) to Channel Operators.
9. Use of Personal Information.
9.1. We will only store and use your Personal Information as is reasonably necessary or appropriate in connection with your use of the Horn Service, including: (a) to contact you in connection with your use of the Service, including to respond to your inquiries; (b) for authentication and identification purposes; (c) to enable us to provide the Service; (d) to process your Paid Subscriptions and to provide you with notices about your Horn Account and your Paid Subscriptions; (e) to fulfill any other purpose for which you provide such information to us; (f) in any other way we may describe when you provide the information; (g) to carry out our obligations and enforce our rights; (h) to provide you with relevant advertising and promotions; (i) to ensure your compliance with the Terms and/or to investigate any potential breach of the Terms; and (j) to protect our networks, data, software, or business interests. You understand and agree that we may transfer, process, maintain, and store your Personal Information, your User Content, and other information in any country (or in multiple countries), including countries other than your country of residence or the country or countries where you use the Service.
9.2. We are committed to protecting your privacy and we will not sell or lease your Personal Information to any third party, and we will not knowingly disclose your Personal Information to a third party if we know or have reason to believe that the third party will use your Personal Information for direct marketing purposes. We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences. Even though we do not disclose your Personal Information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
9.3. In addition to using and disclosing your Personal Information in the manner described above and elsewhere in Privacy Policy and the Terms (including, as described in Section 14.4 of the Terms in connection with third party claims alleging infringement of Intellectual Property Rights), we may disclose your Personal Information:
9.3.1. to any person, entity or organization which you consent for us to disclose your Personal Information to;
9.3.2. to a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation or similar proceeding, in which Personal Information held by us about our users is among the assets transferred.
9.3.3. to any of the 8eo Parties (as defined in the Terms), our business partners and agents who provide hosting services, and website and technical support providers, as is necessary or required in connection with the operation, maintenance, and support of the Horn Service;
9.3.4. to any person, entity or organization in order to facilitate the provision of the Horn Service, such as providing your name and payment information to our third party payment processor when you purchase and renew Paid Subscriptions;
9.3.5. to comply with any legal requirements, subpoena, discovery requests, or court orders, to defend any legal or administrative proceedings, or as we believe in good faith is necessary to comply with any laws or legal requirements;
9.3.6. as we believe is necessary or appropriate in an emergency situation, including without limitation, to prevent criminal activity, personal injury or property damage;
9.3.7. to the police, financial institutions or other appropriate authorities in connection with any investigation of suspected criminal or fraudulent activity by any person or entity; and
9.3.8. if we believe it is necessary or appropriate to protect the rights, property, or safety of the 8eo Parties, our users, or third parties (including, without limitation, to facilitate the enforcement of our rights under the Terms).
10. Security. We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, and disclosure. In general, all information transmitted to us through the Horn Service is encrypted using SSL/TLS. The safety and security of your information also depends on you. You are responsible for safeguarding the Login Credentials associated with your Login Provider and notifying us immediately if you suspect your Login Credentials or your Horn Account have been compromised. We urge you to be careful about giving out information in public areas of the Horn Service. The information you share in public areas may be accessed by any Horn User. You are strongly cautioned to never share Sensitive Information with other users through the Horn Service.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to or through the Horn Service. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained in the Service.
11. Third Party Sites. The Horn Service may contain links to other websites that are operated by third parties. Once you have clicked on a link connecting you to such third party website, you will leave the Horn Service and be taken to a website that we do not control. This Privacy Policy does not apply to any Personal Information (or other information) collected on a third party site. We suggest you read the privacy policy of the third party site before providing any Personal Information on such third party site. We are not responsible for any use by any person or entity of any information that you may provide while accessing or using any websites or services provided by a third party.
12. Access to and Change of Personal Information. You may contact us at any time to: (a) request the removal of the Personal Information you provided to us from our databases; and (b) update your Personal Information. However, certain information associated with sales made through the Horn Service may be retained permanently for legal, tax, and business reasons. In addition, because certain Personal Information may be necessary to provide the Service to you, you understand that the removal of that Personal Information may require us to delete your Horn Account. When your Personal Information (or other User Content) is updated or deleted, copies of such information may remain in our backups for a period of time.
13. Contacting Us. You may contact us with questions relating to this Privacy Policy by writing to us at: P.O. Box 3739, Sarasota, FL 34230.
Horn Opt Out Notice
I am writing to provide notice that I am opting out of the Agreement to Binding Arbitration and the Class Action and Class Arbitration Waiver contained in the Horn Terms of Service Agreement. Pursuant to the opt-out procedures listed in the Horn Term of Service Agreement, I am providing the following information:
My Name:
My Address:
My Phone Number:
My Horn Handle:
My E-mail Address associated with the Login Provider used to access Horn:
Signature:
Date:
Please mail this completed form to the following address:
P.O. Box 3739, Sarasota, FL 34230.
This Horn Opt-Out Notice must be postmarked no later than sixty (60) days after the date you accept the Horn Terms of Service Agreement for the first time. It is your responsibility to mail the Opt-Out Notice by the applicable deadline and to retain proof of mailing and delivery.
DATA DELETION INSTRUCTIONS
Under the General Data Protection Regulation (GDPR), you have the right to have your data deleted and removed from our systems. You may use this form to request that your data be deleted. Please be aware that, despite your request to have your data deleted, there are specific reasons for which we may decline your request and your data will continue to be processed. These reasons are set out below.
You have the right to have your data deleted in the following circumstances:
Your name:
Your horn user name:
Your postal address:
Data you wish to be deleted
Reason for request
I confirm that I am the individual named above and the information requested above is in relation to me.
Signature:
Date:
Terms of Service.
Acceptable
Use Policy.
Privacy Policy.
Opt Out Notice.
Information about our use of cookies.
BY ACCESSING OR USING THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, AND/OR THE HORN SERVICE DESCRIBED IN THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS TERMS OF SERVICE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE.
TERMS OF SERVICE AGREEMENT
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
1. Acceptance of Terms. This Terms of Service Agreement (these "Terms" or this "Agreement") is an agreement between you (referred to in these terms as "you" or "your") and 8eo Inc., a Virginia corporation (referred to in these Terms as "8eo", "we", "us", or "our"), the owner and operator of (the "Horn Website"), the Horn software and mobile applications (collectively, the "Horn Software and Apps"), and the Horn Service (as defined below). You agree to read these Terms carefully.
If you create or use a Horn Account (as defined below) on behalf of another Person (as defined below, including, for example, a company or other organization) ("Your Company"), you represent to us that you have the authority and authorization to bind Your Company to these Terms, and in that case, the terms "you" and "your" will refer both to you in your individual capacity and to Your Company (and the obligations and liabilities of you and Your Company under these Terms will be joint and several). If you do not have such authority and authorization, or if you or Your Company do not agree to all of the provisions of these Terms, you are not permitted to access or use the Service.
You acknowledge that these Terms are a legally binding contract between you and 8eo, even though it is not physically signed, and you acknowledge that these Terms govern your access and use of the Horn Website, the Horn Software and Apps, and the Horn Service.
In this Agreement, you (including, if applicable, Your Company) and 8eo are referred to individually as a "party" and collectively as the "parties", and "User" (and "user") refers to a Person who accesses or uses the Horn Service.
These Terms include important provisions affecting your legal rights and obligations, including, for example, (a) a disclaimer of warranties and limitation of liability by 8eo (see Section 15); (b) dispute resolution provisions that include a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, an agreement that all controversies, claims, and disputes (except for certain claims in small claims court) will be decided by binding arbitration instead of by a court, a limitation of the period of time for bringing a claim against us, and an agreement that any court or arbitration proceedings will take place only in Charlottesville, Virginia, United States (see Section 17); and (c) an obligation for you to pay any expenses and liabilities (such as damages, costs, or legal claims) that the 8eo Parties (as defined below) suffer as a result of your violation of any of the provisions of these Terms (see Section 13). The previous examples are not comprehensive, and you are responsible for reading and agreeing to all of the provisions of these Terms as a condition of your access and use of the Horn Service.
2. Children Under 13. You may only create or use a Horn Account if you are (a) at least thirteen (13) years old, and (b) allowed by applicable law to enter into a binding contract. If you are not at least thirteen (13) years old, you must not access or use the Horn Website, the Horn Software and Apps, or the Horn Service. (But we hope you come back and join us after you turn thirteen!)
3. Privacy Policy and Acceptable Use Policy. Our Privacy Policy, located here (the "Privacy Policy"), explains how we collect and use your information, and our Acceptable Use Policy, located here (the "Acceptable Use Policy"), outlines your responsibilities when using the Horn Service. You agree to read and comply with the Acceptable Use Policy and the Privacy Policy. You acknowledge and agree that the provisions of the Privacy Policy and the Acceptable Use Policy are made a part of these Terms and are binding upon you and 8eo.
4. Updates to These Terms. As technology changes and as our business grows and develops, we may modify these Terms (including the Privacy Policy and the Acceptable Use Policy) from time to time. When we modify these Terms, we will give you notice by posting the amended Terms on the Horn Website and, if the changes meaningfully affect your rights or obligations, by e-mail (if you have provided us with your e-mail address as part of your Account Information) or by an alert within the Horn Software and Apps. The amended Terms will include an Effective Date, and the amended Terms will be effective on that date. However, any changes to the governing law or dispute resolution provisions set forth in Sections 16 and 17 will not apply to any disputes for which 8eo and you have received actual notice on before such Effective Date. If you continue to access or use the Horn Website or the Horn Service after the Terms are amended, you agree to be bound by the revised Terms. If you do not agree with the updated Terms, you agree that you will promptly disable your account and discontinue your use of the Service. You can access historical versions of these Terms and other policies at: archive.
5. Description of Horn Service. The Horn Service (referred to in these Terms as the "Service" or the "Horn Service") includes a real-time communication service and related systems and technologies, the Horn Website, the Horn Software and Apps, and all other services provided to you by 8eo. The Service allows you (and other users) to make and receive real-time digital audio transmissions to and from one or more other users (each, a "Horn Transmission"), which take place within one or more channels (each, a "Horn Channel"). You acknowledge and agree that the Horn Service is always evolving and that we may, at any time and without notice to you, add or remove features or functionality of the Service or modify or discontinue the Service, in whole or in part. The Horn Service (or some of its features) may not be available in all countries. The Horn Service may contain links to third party websites or advertisements or promotions for third party products and services. We are not responsible for any content, products, or services provided by others. The inclusion of any link to such sites or advertisements or promotions of such products or services does not imply endorsement by 8eo or its Affiliates.
6. Your Horn Account.
6.1. Registration. In order to use the Horn Service, you must register with 8eo and create an account (a "Horn Account"). Our registration process currently requires you to login using your account with Twitter, Google, or Facebook (each, a "Login Provider") and to create a Horn Handle. By creating a Horn Account, you agree to the terms of use, privacy policy, and other agreements between you and the Login Provider and you consent to the Login Provider sharing your information with us. The Login Provider will provide us with certain information about you (or associated with you) from your account with the Login Provider (an "Associated Account"), including, for example, your full name, profile picture, age, birthday, gender, language, country, e-mail address, profile URL, friend list, news feed, status updates, checkins (and other location information), hometown, current city, photos, videos, website, personal description (and your friends' birthdays, status updates, checkins (and other location information), hometowns, current cities, photos, videos, websites, and personal descriptions), Tweets from your timeline, the people you follow or who follow you, and other personal information. The Login Provider will provide us with information from your Associated Account at the time you create your Horn Account and on a continuing basis afterward. As used in these Terms, "Account Information" means all information associated with a user's Horn Account, including information from an Associated Account that is provided to us by a Login Provider, and any other information that the user provides to us in connection with the user's Horn Account. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, we retain the right, in our sole discretion, to suspend or terminate your Horn Account and your access to the Horn Service.
6.2. Horn Handle. When you create your Horn Account, you will be required to select a unique name (a "Horn Handle") that will be used to identify you in the Horn Service. The name you select must comply with the Acceptable Use Policy. You understand and agree that we may, at any time and without notice to you, disable, change, delete, or reclaim the Horn Handle that you select, and we may require to you to select a new Horn Handle. We may do this, for example, if we believe the Horn Handle you selected violates our Acceptable Use Policy or infringes the Intellectual Property Rights of any Person.
7. Using the Horn Service.
7.1. Permission to Use the Service. Subject to your compliance with these Terms (including the Acceptable Use Policy and the Privacy Policy), we grant you permission to access and use the Horn Service. The permission for you to use the Service is further conditioned on the following: (a) you will use the Service only for your personal use (including, if applicable, Your Company's personal use); (b) you will not permit any other Person to access or use the Service through your Horn Account; (c) you will not attempt to reverse engineer, alter, or modify any part of the Service, including the Horn Website and the Horn Software and Apps; (d) if you choose to purchase or subscribe to any Paid Services (as defined below), you will make all required payments; (e) you will not save, record, or copy any Horn Transmission (in whole or in part), except as expressly permitted for Channel Operators (as defined below) pursuant to Section 10.3; and (f) you will comply with all of the provisions of these Terms, the Privacy Policy, and the Acceptable Use Policy. If you violate the Terms of Use, the Acceptable Use Policy, or the Privacy Policy, your permission to use the Horn Service (including any Paid Subscriptions (as defined below)) will automatically terminate, and you will not be entitled to any refund of payments made to us. Your permission to access and use the Horn Service is personal, non-exclusive, non-assignable, non-sublicensable, and may be limited or revoked by us at any time. We reserve the right, in our sole discretion, to refuse service and/or to suspend or terminate your Horn Account.
7.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the login credentials (such as password and username, Horn Handle, or e-mail address) used to access your Horn Account (including your login credentials used to access your selected Login Provider) (your "Login Credentials"). You acknowledge and agree that you are responsible for any activities that occur through your Horn Account, whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your Horn Account and of any unauthorized use of your Horn Account. We will not be liable for your losses caused by any unauthorized use of your Horn Account, and you acknowledge and agree that you may be liable for the losses of the 8eo Parties or others due to such unauthorized use.
8. User Content.
8.1. Generally. As used in these Terms, "User Content" means all Account Information, all Horn Transmissions, and all content (including without limitation, text, photos, graphics, logos, audio, video, and other materials) that a user uploads, posts, sends, submits, transmits, or otherwise transfers to or through the Horn Service. You acknowledge and agree that we do not prescreen User Content and that we are not responsible for the content of any User Content, and we make no guarantees as to the validity, accuracy, or legal status of any User Content. Nevertheless, we may at any time, with or without notice to you, block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit any User Content.
8.2. Your Content. You represent and warrant to the 8eo Parties that your User Content complies (and will at all times continue to comply) with the Acceptable Use Policy. You acknowledge and agree that your User Content will be treated as non-confidential and non-proprietary, except as otherwise specifically provided in the Privacy Policy. You retain any ownership rights you have in your User Content, and nothing in these Terms limits your right to use your User Content outside of the Horn Service or your right to license or sell your User Content to others. You grant us a worldwide, royalty-free, non-exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your User Content (including Horn Transmissions) in any and all media or distribution methods (now known or later developed), to exercise all Intellectual Property Rights in and to your User Content, and to exercise Publicity Rights (as defined below) with respect to each identifiable Person in your User Content (the "Content License"). Subject to the Privacy Policy, the Content License permits us, for example, to use your User Content to provide and improve the Horn Service for you and other users, to market and promote 8eo and the Service, and to provide relevant offers and advertising. In addition, you acknowledge and agree that Channel Owners (as defined below) and Channel Operators (as defined below) may have the option to record the Horn Transmissions in their Horn Channels (each, a "Channel Recording"). You hereby consent to such recording of your Horn Transmissions, and you hereby grant each Channel Operator and Channel Owner who creates a Channel Recording a worldwide, royalty-free, non-exclusive, transferable, sublicensable, perpetual, and irrevocable license to use, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, distribute, communicate, and transmit your Horn Transmissions and to exercise all Publicity Rights with respect to your speech, voice, and sound-alike embodied in any Channel Recordings. You understand and agree that we may transfer, process, maintain, and store your User Content in any country (or in multiple countries), including countries other than your country of residence or the country or countries where you use the Service.
8.3. Third Party Access. You understand and agree that some or all of your User Content may be accessed and/or viewed or heard by other Horn Users (and other third parties). You hereby grant to each Horn User permission to access and view any of your User Content that is available through the Horn Service to such user (until the User Content is removed from the Service or the user no longer has access to the User Content through the Service). Some portions of the Horn Service may include options or controls to limit the sharing or visibility of your User Content, and we will respect the choices you make using those options or controls. We will only share your User Content with third parties as permitted by the Privacy Policy.
8.4. Third Party Rights. You represent and warrant to the 8eo Parties: (1) that you have the right (and have obtained any and all necessary permissions, consents, and authorizations) to grant us the Content License and to grant all other rights and licenses granted in these Terms, and (2) that the use of your User Content and the exercise of the Content License by the 8eo Parties (and their sublicensees) will not infringe the Intellectual Property Rights (as defined below) of any Person. In addition, you represent and warrant to the 8eo Parties: (a) that none of your User Content will contain third party copyrighted material or material that is subject to other third party Intellectual Property Rights unless you have written permission from the rightful owner of the materials (or you are otherwise legally entitled) to upload, post, send, submit, transmit, or otherwise transfer such materials as part of your User Content, to grant us the Content License, and to grant all other rights and licenses granted in these Terms; and (b) that you have the written consent, release, and/or permission of each and every identifiable Person in your User Content to use (and to grant us, as part of the Content License, the right to use) the Person's name, image, photo, portrait, voice, sound-alike, likeness, and persona in connection with your User Content.
9. Paid Services.
9.1. Generally. Certain options, upgrades, features, and other components of the Horn Service (each, a "Paid Service"), such as Paid Channels (as defined below) and additional features for Paid Channels (each, a "Channel Add-on"), are available only to users who have purchased subscriptions to such Paid Services (each, a "Paid Subscription"). The fees for Paid Services are set forth in the Horn Fee Schedule at /fees. If you choose to purchase any Paid Subscriptions, you are granted permission to use the applicable Paid Services in connection with your use of the Horn Service for the duration of your Paid Subscriptions. We may change the fees for our Paid Services at any time, but no such fee changes will apply to any of your Paid Subscriptions until such Paid Subscription is renewed.
9.2. Payment.
9.2.1. If you purchase any Paid Subscriptions, you acknowledge and agree that you will provide and maintain complete and accurate billing contact and payment information as requested by 8eo (your "Payment Information") as part of your Account Information. Subject to the Privacy Policy, your Payment Information may be transmitted to and stored by a third party payment processor.
9.2.2. You are responsible for making full and complete payment for all Paid Subscriptions. In no event are we responsible for any failure to process payment for or renewal of any Paid Subscriptions. In the event of a charge back by a credit card company, or any similar action by a payment provider (a "Charge Back"), you agree that we may suspend, cancel, or terminate your Paid Subscriptions and/or your Horn Account. If, within five (5) days of the Charge Back, you pay our then current reinstatement fee (see the Horn Fee Schedule at /fees) and all other payments due to us for your Paid Subscriptions, we will reinstate your Paid Subscriptions and your Horn Account. However, we reserve the right, for any reason, to refuse to reinstate your Paid Subscriptions and your Horn Account, in which case we will not accept your payment of the reinstatement fee.
9.3. Expiration and Renewal. Each Paid Subscription will automatically terminate on its expiration date unless we receive and accept full payment from you before such expiration date. Paid Subscriptions may be renewed by payment of the then current renewal fee for the applicable Paid Service (see the Horn Fee Schedule at /fees). You acknowledge and agree that it is your responsibility to keep and maintain your own records and reminders regarding when your Paid Subscriptions are scheduled to expire. As a convenience to you, we may send you a reminder notice informing you when the renewal fees for your Paid Subscriptions are due, but we have no obligation to do so. Unless you turn off the auto renew option, you agree that we may (but are not obligated) to attempt to renew each Paid Subscription within a reasonable period of time before its expiration date using the Payment Information (if any) associated with your Horn Account at our then current fee for such Paid Service (see the Horn Fee Schedule at /fees). The Paid Subscriptions for Channel Add-ons will automatically terminate upon the expiration or cancellation of the Paid Subscription for the associated Paid Channel, and no credit or refund will be issued in connection with such termination.
9.4. Cancellations and Refunds. All purchases of Paid Subscriptions are final. You may disable a Paid Subscription or disable your Horn Account at any time, but we will not issue you a refund. We reserve the right to cancel any of your Paid Subscriptions at any time and for any reason, including without limitation for your violation of any provision of these Terms (including the Acceptable Use Policy and the Privacy Policy). If we cancel any of your Paid Subscriptions or modify the Channel Name of your Paid Channel for any reason other than for a violation of these Terms, we will issue you a pro-rata refund for the remaining, unused portion of your Paid Subscription, which will be your sole and exclusive remedy in the event of such cancellation or termination.
10. Channel Owners and Operators.
10.1. Definitions. As used in these Terms:
10.1.1. "Paid Channel" means either a Horn Channel for which a Channel Owner (as defined below) has purchased a Paid Subscription or a Horn Channel owned by 8eo.
10.1.2. "Free Channel" means any Horn Channel other than a Paid Channel.
10.1.3. "Channel Owner" means a Horn User who has purchased a subscription to a Paid Channel.
10.1.4. "Channel Operator" means a Horn User who has the permission and ability to perform certain administrative functions with respect to the applicable Horn Channel. A Channel Owner is automatically a Channel Operator for the Channel Owner's Paid Channels.
10.2. Channel Names. The Horn User who creates a new Horn Channel, will have the option to select the name for that Horn Channel (the "Channel Name") and, in some cases, may have the option to include a logo or design for such Horn Channel (the "Channel Logo"). The Channel Name and Channel Logo must comply with all of the provisions of these Terms (including the Acceptable Use Policy).
10.3. Channel Recordings. Channel Owners may purchase a Paid Subscription which allows Channel Operators to record the Horn Transmissions that take place in the Channel Owner's Paid Channels. Channel Recordings are not hosted or stored by 8eo, and each Channel Operator is responsible for connecting his Horn Account to a compatible cloud storage service and for any fees or costs associated with the use of such service.
11. Intellectual Property Rights.
11.1. Generally. You acknowledge and agree that, except for User Content and except as otherwise expressly stated in these Terms, 8eo (or its licensors) own all Intellectual Property Rights in and to all content and materials displayed, transmitted, performed, included, or provided by us on or through the Horn Website and the Horn Service, including without limitation all text, titles, photos, graphics, logos, designs, audio and video transmissions and recordings, and other content (collectively, "Horn Materials"). Except as otherwise expressly provided in these Terms, we retain all rights in and to the Horn Service and the Horn Materials. As used in these Terms, "Intellectual Property Rights" means intellectual property rights arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (i) fictional business names, trade names, company and corporate names, trademarks and service marks (whether registered or unregistered, including any applications for registration of any of the foregoing), logos, Internet domain names, and trade dress rights, together with the goodwill associated with any of the foregoing (collectively, "Marks"); (ii) inventions, patent applications, and patents issued therefrom in the United States and in all other countries, including all continuations, divisionals, continuations-in-part, inventions registrations, re-examinations, registrations, renewals, utility models, reissues and the like corresponding thereto (collectively, "Patents"); (iii) copyrights and registrations and applications therefor (collectively, "Copyrights"); (iv) proprietary and confidential information which constitute trade secrets, such as proprietary and confidential know-how, inventions, discoveries, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, and data bases in each case excluding any of the foregoing to the extent the rights therein comprise or are protected by Copyrights or Patents (collectively, "Trade Secrets"); (v) publicity rights, including without limitation the right to use a Person's name, image, photo, portrait, voice, sound-alike, likeness, and persona for advertising, marketing, promotional, trade, business, and commercial purposes (collectively, "Publicity Rights"); and (vi) moral rights and privacy rights (collectively, "Other IP Rights").
11.2. Our Trademarks. The names 8eo, Horn, the > symbol, and the graphics, icons, logos, service names, designs, and layouts associated with the Horn Service are the trademarks, service marks, or trade dress of 8eo in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
11.3. Feedback. We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, suggestions, or questions about the Horn Service or any other product or service (collectively, "Feedback"). You agree not to send us any information or ideas that are sensitive or confidential, and you agree that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback in any and all media or distribution methods (now known or later developed), to exercise all Intellectual Property Rights in and to your Feedback.
Without limitation and notwithstanding anything to the contrary herein, we will have exclusive ownership of all present and future rights to the Feedback. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback. The provisions of Section 11.3 will continue to apply even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
12. Advertising. The Horn Service may include advertising, which may be targeted to you based on your User Content, your use of the Service, and other information. In exchange for us granting you permission to access and use the Service, you consent to 8eo (and our third party providers, partners, and affiliates) (a) placing such advertising in the Service, and (b) displaying such advertising in connection with the display of your User Content or Account Information.
13. Indemnification. As used in these Terms, "Affiliate" means any other Person, directly or indirectly controlling, controlled by or under common control with the subject Person, and "8eo Parties" means 8eo, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of any of the foregoing. You agree to indemnify, defend, and hold harmless the 8eo Parties from, against, and with respect to any and all liabilities, claims, losses, damages (including without limitation property damage and all incidental, consequential, punitive, special, and exemplary damages), injuries (including without limitation personal injury, sickness, and death), interest, fines, taxes, premiums, assessments, penalties, costs, and expenses (collectively, "Claims"), including without limitation any and all attorneys' fees, paraprofessionals' fees, and expenses incurred in the defense of Claims (whether or not a suit is instituted and, if so instituted, through all trial and appellate levels), arising out of or related to: (a) your use of and access to the Horn Service; (b) the use of your Horn Account (whether by you or any other Person); (c) your breach or violation of any provision of these Terms (including the Acceptable Use Policy and the Privacy Policy); (d) your use of Channel Recordings; (e) our exercise of any rights or licenses granted by you to us (including the use of your User Content or Feedback); (f) any inaccuracy in or breach of any of the representations or warranties made by you; (g) your violation or alleged violation of any law or infringement of any third party right, including without limitation any Intellectual Property Rights or privacy rights; (h) your negligence, recklessness, or willful misconduct; or (i) any claim that your use of the Horn Service caused damage to a third party. 8eo will have the exclusive right: (1) to select legal counsel to defend Claims, (2) to direct the defense or settlement of Claims, (3) to make, accept, or reject any offers of settlement of Claims, (4) to enter into any settlement, and (5) to admit or deny fault or liability. Your obligations under this Section will continue even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
14. Claims of Intellectual Property Infringement.
14.1. Generally. We respect the Intellectual Property Rights of others, and we require each of our users to do the same. We take claims of infringement of Intellectual Property Rights seriously, and we reserve the right, in our sole discretion, to block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit (collectively, "Remove" or "Removing") any User Content and to modify, disable, or delete Horn Handles, Channel Names, and Channel Logos. In appropriate cases and in our sole discretion, we may Remove User Content or modify, disable, or delete Horn Handles or Channel Names if properly notified that such User Content, Horn Handles, Channel Names, or Channel Logos infringes a third party's Intellectual Property Rights. It is our policy, in appropriate circumstances, to disable and/or terminate the Horn Accounts of users who are repeat infringers.
14.2. Acknowledgment, Release, and Waiver. You acknowledge that the Horn Service allows users to create, send, and receive real-time digital audio transmissions to and from one or more other users and that 8eo does not prescreen, approve, or store such Horn Transmissions. You further acknowledge and agree that we have no responsibility or liability to you for such Horn Transmissions, User Content, or Horn Handles, Channel Names, or Channel Logos created by you or any Horn Users. Notwithstanding any other provision in these Terms to the contrary, you, on your own behalf and on behalf of your Affiliates, officers, directors, shareholders, successors, heirs, and assigns, hereby forever release, acquit, discharge, and agree not to sue or institute any legal action against the 8eo Parties from, against, and with respect to, all claims, actions, liability, obligations, damages, causes of action (whether based in tort, contract, or on any legal or equitable ground or theory of recovery) arising from, related to, or associated with: (1) any acts or omissions by Horn Users; (2) the use, practice, copying, modification, adaptation, creation of derivative works of, storage, hosting, publishing, public performance, public display, distribution, communication, transmission, or transfer of User Content or Channel Recordings on or through the Service; (3) any Horn Handles, Channel Names, or Channel Logos created by Horn Users; (4) the use of Channel Recordings by Channel Operators or any third parties; or (5) the exercise of the Content License by the 8eo Parties and their sublicensees. Without limiting any of our rights to take other action described in these Terms, including without limitation, immediately Removing or modifying Infringing Content without notice, we will, within a reasonable period of time following our receipt in writing of a final, non-appealable court order finding that specific User Content or Horn Handles, Channel Names or Channel Logos created by Horn Users infringes a third party's Intellectual Property Rights ("Infringing Content"), Remove or modify such Infringing Content in the jurisdictions to which such order applies. The provisions of this Section 14.2 will continue to apply even if you stop using the Horn Service and will survive the deletion, expiration, or termination of your Horn Account or these Terms.
14.3. Reporting Claims of Copyright Infringement.
14.3.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. 8eo will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Horn Service infringe your copyright, you may request removal of those materials (or access thereto) from the Horn Service by submitting written notification to the 8eo Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the "DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
8eo's designated Intellectual Property Agent to receive DMCA Notices is:
Lawrence T. Levine
PO Box 3739
Sarasota, FL 34230
+1 (848) 480 0100
legal@horn.co
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Horn Service is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
14.3.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with 8eo (a "DMCA Counter-Notice") by submitting written notification to the 8eo Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include substantially the following:
The DMCA allows 8eo to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Horn Service was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
14.4. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the Horn Service and/or any Horn Handles, Channel Names, or Channel Logos infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content, Horn Handles, Channel Names, or Channel Logos (or access thereto) from the Horn Service by submitting written notification to the 8eo Intellectual Property Agent (designated above). The written notice (an "Infringement Notice") must include all of the following:
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including without limitation, temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user or Channel Operator who is responsible for the applicable Alleged Infringing Content (the "Responsible Party") and request that such Responsible Party provide a written response to the party alleging infringement (the "Asserting Party") or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party's contact information (name, address and e-mail address). If the Responsible Party's response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party shall communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we shall Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 14.2 above.
WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY USER CONTENT, HORN HANDLE, CHANNEL NAME, CHANNEL LOGO, HORN TRANSMISSIONS, AND/OR ANY OTHER CONTENT OR MATERIALS THAT ARE POSTED, DISPLAYED, OR TRANSMITTED BY ANY PERSON IN CONNECTION WITH THE HORN WEBSITE AND/OR THE HORN SERVICE (COLLECTIVELY, "THIRD PARTY MATERIALS") OR FOR ANY FAILURE TO REMOVE ANY THIRD PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF USE AND SUBJECT TO APPLICABLE LAW, ANY PERSON WHICH ALLEGES THAT ANY THIRD PARTY MATERIALS INFRINGES ITS OR A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS EXPRESSLY AND FOREVER WAIVES ALL SUCH INFRINGEMENT CLAIMS AGAINST THE 8EO PARTIES AND AGREES THAT ITS SOLE RECOURSE WITH RESPECT TO ANY SUCH CLAIMS SHALL BE AGAINST THE PERSON OR ENTITY WHO POSTED OR IS OTHERWISE RESPONSIBLE FOR SUCH THIRD PARTY MATERIALS.
HORN HAS NO RESPONSIBILITY OF LIABILITY TO ANY PERSON FOR REMOVING ANY THIRD PARTY MATERIALS. EACH USER EXPRESSLY AND FOREVER WAIVES ALL CLAIMS AGAINST THE 8EO PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY THIRD PARTY MATERIALS.
You agree that if you knowingly materially misrepresent that User Content, Horn Handles, Channel Names, Channel Logos, or activity on the Horn Service is infringing Intellectual Property Rights, you will be held liable for costs and fees (including attorneys' fees) and other damages incurred by 8eo in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
15. Disclaimers and Limitation of Liability - PLEASE READ CAREFULLY: This Section 15 limits the liability of the 8eo Parties. The provisions of this Section apply to the maximum extent permitted under applicable law. Some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
15.1. You understand that we cannot and do not guarantee or warrant that User Content, files, or other content or materials available for downloading from the Internet or transmitted through the Service will be free of viruses, malware, or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus and anti-malware protection and for maintaining a means external to the Horn Service for any reconstruction of any lost data. You agree that you will not use the Service in connection with any mission-critical, emergency, life-sustaining, or life-saving systems or for any such purposes. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, MALWARE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT, DAMAGE, OR DELETE YOUR DEVICES OR DATA DUE TO YOUR USE OF THE SERVICE OR YOUR ACCESSING OR DOWNLOADING ANY USER CONTENT, HORN MATERIALS, OR OTHER MATERIALS AVAILABLE ON OR THROUGH THE HORN SERVICE OR LINKED TO FROM THE HORN SERVICE.
15.2. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY OF ANY KIND TO YOU OR OTHERS AS A RESULT OF ANY LOSS, THEFT, DELETION, DESTRUCTION, ALTERATION, OR CORRUPTION OF, DAMAGE, UNAUTHORIZED ACCESS TO, OR FAILURE TO TRANSMIT, STORE, BACKUP, OR ENCRYPT ANY USER CONTENT OR ANY DATA OR FILES STORED ON ANY DEVICE USED TO ACCESS THE HORN SERVICE OR STORED IN ANY THIRD PARTY SERVICE OR ACCOUNT CONNECTED TO YOUR HORN ACCOUNT.
15.3. YOUR USE OF THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, AND THE HORN SERVICE AND THE HORN MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) IS AT YOUR OWN RISK. THE HORN SERVICE AND THE HORN MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) ARE PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
15.4. THE 8EO PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF THE 8EO PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE). WITHOUT LIMITING THE FOREGOING, NONE OF THE 8EO PARTIES REPRESENTS OR WARRANTS THAT THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE HORN SERVICE OR THE HORN MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE SERVICE)WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
15.5. The Horn Service allows users to make and receive real-time digital audio transmissions to and from one or more other users, and 8eo does not control or pre-screen the User Content of such Horn Transmissions. Some content may prove to be offensive, harmful, illegal, or deceptive. There is also the risk that you may interact with underage persons or people acting under false pretense on or through the Horn Service. There may also be risks associated with dealing across international boundaries and with foreign nationals. You agree to accept these risks and you also acknowledge and agree that the 8eo Parties will not be responsible for any damages or injury that may result from your use of the Horn Service.
15.6. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE 8EO PARTIES WILL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON ARISING OUT OF, RELATED TO, OR ASSOCIATED WITH (A) YOUR USE OF THE HORN SERVICE, (B) THE USE OF THE HORN SERVICE BY ANY OTHER PERSON, OR (B) THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.7. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF THE 8EO PARTIES TO YOU OR ANY OTHER PERSON FOR ANY REASON AND UPON ANY CAUSE OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) WILL BE LIMITED TO ACTUAL DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON‑INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
15.8. You and 8eo acknowledge that the disclaimers and limitations of liability in this Section 15 represent the bargained for allocations of risk, and that the consideration received by 8eo from you under these Terms represents such allocations of risk. You acknowledge and agree: (a) that neither 8eo nor any person or entity acting, or purporting to act, on behalf of 8eo has made any representations to you other than those representations expressly made by 8eo in these Terms, and (b) that in connection with your acceptance of these Terms, you have not relied upon any representations made by 8eo or any person or entity acting, or purporting to act, on behalf of 8eo other than those representations and warranties expressly made by 8eo in these Terms.
15.9. SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS SECTION 15. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION 15 WILL CONTINUE TO APPLY EVEN IF YOU STOP USING THE HORN SERVICE AND WILL SURVIVE THE DELETION, EXPIRATION, OR TERMINATION OF YOUR HORN ACCOUNT OR THESE TERMS.
16. Governing Law and Interpretation. These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the applicable federal laws of the United States, without regards to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. If any ambiguity or question of intent or interpretation arises, these Terms will be construed as if drafted jointly by 8eo and you, and no presumptions or burden of proof will arise favoring or disfavoring 8eo or you by virtue of authorship of any of the provisions of these Terms. We retain all rights at law and in equity to enforce the provisions of these Terms in accordance with applicable laws.
17. Dispute Resolution – PLEASE READ CAREFULLY: This Section 17 includes important provisions that affect your legal rights, including, for example, a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, an agreement that all controversies, claims, and disputes, except for certain claims in small claims court, will be decided by binding arbitration instead of by a court, and an agreement that any arbitration or court proceedings will take place only in Charlottesville, Virginia, United States.
17.1. Initial Dispute Resolution. We believe you will have a positive experience using the Horn Website, the Horn Software and Apps, and the Horn Service, and we invite you to contact us about any questions or issues you experience. We want to address any concerns you may have about the Service without needing to engage in a formal legal process. Before initiating an arbitration proceeding or filing a lawsuit, you agree to attempt to resolve the dispute informally by e-mailing us at legal@horn.co. You and 8eo agree to work in good faith to settle any dispute, claim, controversy, question, or disagreement directly through consultation and good faith negotiations, which is a prerequisite to either you or 8eo initiating arbitration or a lawsuit.
17.2. Agreement to Binding Arbitration. If you and 8eo do not reach a mutually agreed resolution within a period of thirty (30) days from the time informal dispute resolution is first pursued pursuant to Section 17.1, then either you or 8eo may initiate binding arbitration. Any controversy, dispute, or claim arising out of or relating to (a) these Terms (including, but not limited to, the interpretation and scope of the arbitration provisions in this Section 17.2 and the arbitrability of the controversy, dispute, or claim), (b) the formation, performance, or breach of these Terms, or (c) alleged infringement by 8eo or the Service of any Intellectual Property Rights, shall be settled by binding arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. (The AAA's rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879.) The arbitrator(s) will have the power to rule on any challenge to the jurisdiction of the arbitrator(s) or to the validity or enforceability of any portion of the agreement to arbitrate. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $1 Million United States Dollars, in which case the dispute shall be heard by a panel of three arbitrators. In arbitrations having one arbitrator, the arbitrator will be selected by the AAA. In arbitrations with three arbitrators, within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The place of arbitration shall be Charlottesville, Virginia, United States, and the arbitration shall be conducted in English. The arbitration shall be governed by the laws of the Commonwealth of Virginia and the applicable federal laws of the United States. The arbitrator(s) will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by applicable laws. The arbitrator(s) may award injunctive relief for infringement of Intellectual Property Rights or any violation of the Acceptable Use Policy. The arbitrator(s) shall not award consequential, punitive, special, or exemplary damages in any arbitration initiated under this Section 17.2. Each party shall bear its own costs and expenses (including attorneys' fees) and an equal share of the arbitrators' and administrative fees of arbitration. The award of the arbitrator(s) (the "Underlying Award") shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties, except that that the parties may disclose such information to the extent required by law and to their respective agents and professional advisors who have a legitimate need to know such information. The Underlying Award may be appealed pursuant to the AAA's Optional Appellate Arbitration Rules ("Appellate Rules"), and the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
17.3. Class Action and Class Arbitration Waiver. You and 8eo further agree that any lawsuit or arbitration shall be conducted in your (including, if applicable, Your Company's) and 8eo's individual capacities only and not as a class action or other representative action, and you and 8eo expressly waive the right to file a class action or seek relief on a class basis. If the arbitrator(s) or any court determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then Section 17.2 will not apply and will not be considered a part of these Terms and the parties shall be deemed not to have agreed to arbitrate disputes.
17.4. Right to Opt Out. You have the right to opt out of the arbitration and class action waiver provisions in Sections 17.2 and 17.3 by completing, signing, and mailing the Opt Out Form located here within sixty (60) days after the date you first began using the Service. In order for the Opt Out form must be completed in its entirety and signed by you, and you understand and agree that you are responsible for retaining proof of mailing and delivery. If you exercise your option to opt out as provided in this Section 17.4, then Sections 17.2 and 17.3 will not apply and will not be considered a part of these Terms.
17.5. Limited Exceptions.
17.5.1. Small Claims Court Claims. Notwithstanding Section 17.2 above, if you and 8eo do not reach a mutually agreed resolution within a period of thirty (30) days from the date informal dispute resolution is first pursued pursuant to Section 17.1, then either you or 8eo may assert claims, if they qualify, in the small claims division of the General District Court in Charlottesville, Virginia, United States.
17.5.2. Injunctive Relief. You acknowledge and agree that any violation of the Acceptable Use Policy may cause irreparable harm to the 8eo Parties (or other Horn Users), for which monetary damages would not be an adequate remedy. Therefore, notwithstanding Sections 17.1 and 17.2 above, you agree that: (a) 8eo will be entitled to immediate injunctive relief to enjoin any actual, suspected, threatened, or potential violation by you of the Acceptable Use Policy; (b) 8eo will be entitled to such injunctive relief without any obligation (i) to post a bond or other security, or (ii) to prove actual damages or to prove that monetary damages will not provide an adequate remedy; (c) the provisions of Sections 17.1 and 17.2 will not apply to any action by 8eo seeking such injunctive relief; and (d) you will not oppose or otherwise challenge the appropriateness of injunctive relief or the entry by a court of competent jurisdiction of an order granting injunctive relief.
17.6. Service of Process. If your Account Information does not contain your current and accurate physical address (or if we are unable, after reasonable efforts, to effect service of process on you at such physical address), you hereby irrevocably agree to accept service of process by any means of communication associated with your Horn Account or through any contact information in your Account Information, including without limitation, service by U.S. mail, e-mail, SMS, messages or alerts displayed or sent to you through the Horn Website or the Horn Software and Apps, or social media messages, posts, or tweets, and you waive any objections to service of process by such methods.
17.7. Time Period for Bringing Claims. YOU MUST COMMENCE OR FILE ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO (A) THESE TERMS, (B) THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE (OR THE USE OF ANY OF THE FOREGOING BY YOUR OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY 8EO OF ANY OF OBLIGATIONS UNDER THESE TERMS, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY ANY OF THE 8EO PARTIES OR THE HORN SERVICE OF ANY INTELLECTUAL PROPERTY RIGHTS WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED. YOU EXPRESSLY WAIVE THE RIGHT TO COMMENCE OR FILE ANY SUCH CLAIM OR ACTION UNDER ANY LONGER STATUTE OF LIMITATIONS.
17.8. Venue for Judicial Actions. To the extent that the provisions of Section 17.2 do not apply (for example, if you exercise your right to opt out of the arbitration provisions by giving notice as required in Section 17.4, or if any arbitrator(s) or court determines that any of the provisions of Sections 17.2 or 17.3 are void or unenforceable, or for small claims brought pursuant to Section 17.5.1, or for requests by 8eo for injunctive relief pursuant to Section 17.5.2), you and 8eo agree as follows:
17.8.1. Any and all claims and disputes arising out of or relating to (a) these Terms, (b) the Horn Website, the Horn Software and Apps, or the Horn Service (or the use of any of the foregoing by your or any other Person), (c) the performance or non-performance by you or 8eo of any of obligations under these Terms, or (d) actual or alleged infringement by you, any of the 8eo Parties or Affiliates, or the Horn Service of any Intellectual Property Rights, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in Charlottesville, Virginia, United States. YOU AND 8EO BOTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN ANY SUCH COURT (AND IN ANY OF THE APPROPRIATE APPELLATE COURTS THEREFROM) AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION (INCLUDING WITHOUT LIMITATION ANY OBJECTION BASED ON INCONVENIENT FORUM) WHICH YOU OR 8EO MAY NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT.
17.9. Waiver of Jury Trial. YOU AND 8EO IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU OR 8EO MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (A) THESE TERMS, (B) THE HORN WEBSITE, THE HORN SOFTWARE AND APPS, OR THE HORN SERVICE (OR THE USE OF ANY OF THE FOREGOING BY YOUR OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR 8EO OF ANY OF OBLIGATIONS UNDER THESE TERMS, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY YOU, ANY OF THE 8EO PARTIES OR AFFILIATES, OR THE HORN SERVICE OF ANY INTELLECTUAL PROPERTY RIGHTS. YOU CERTIFY AND ACKNOWLEDGE THAT: (1) NONE OF THE 8EO PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT 8EO WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (4) YOU HAVE BEEN INDUCED TO ENTER INTO THESE TERMS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION.
18. Termination. We reserve the right, without any liability to you, to Remove your User Content (in whole or in part), to modify, disable, or delete your Horn Handle and Channel Names, to suspend, delete, or terminate your Horn Account (or any of your Paid Subscriptions), and to suspend or terminate your permission to access and use the Horn Website, the Horn Software and Apps, and the Horn Service for violation of these Terms (including the Acceptable Use Policy and the Privacy Policy), for failure to pay for your Paid Subscriptions when they are due, or for any other reason. If you wish to end your relationship with us, you may disable your Horn Account at any time. We reserve the right to retain historical records and information related to your Horn Account for financial, security, legal, and other purposes. These Terms and all rights and permission granted by 8eo to you will automatically terminate upon the deletion or termination of your Horn Account. Any termination, cancellation, or expiration of these Terms notwithstanding (and notwithstanding the deletion or termination of your Horn Account or your stopping using the Horn Service), provisions which are by their terms intended to survive and continue will so survive and continue, including without limitation Sections 8.1, 8.2, 8.4, 11, 13, 14, 15, 16, and 17.
19. Miscellaneous.
19.1. Definitions. As used in these Terms:
19.1.1. "Laws" (or "laws") means all constitutions, treaties, ordinances, statutes, codes, rules, regulations, orders, injunctions, writs, or decrees of any government or political subdivision or agency thereof, or any court or similar entity established by any thereof, and the common law arising from final, non-appealable decisions of any government authority.
19.1.2. "Person" (or "person") means any individual, corporation, limited liability company, partnership, limited liability partnership, association, joint-stock company, trust, unincorporated organization, joint venture, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
19.1.3. "United States" and "U.S." means the United States of America.
19.2. Relationship Between You and 8eo; No Third-Party Beneficiaries. Nothing in these Terms will be construed as creating any partnership, joint venture, franchise, employment relationship, or agency relationship in any way between you and any of the 8eo Parties. You will not have apparent or actual authority to bind any of the 8eo Parties to any debt, contract, or other arrangement. Nothing in these Terms is intended, nor will be deemed, to confer any rights or remedies upon any Person other than the 8eo Parties and you.
19.3. Due Authorization. Each party represents, warrants and agrees that the acceptance and performance of this Agreement have been duly approved by all necessary corporate action and are not in violation of any other agreement such party has with any third parties; and that this Agreement is a valid binding, legal obligation of each party, enforceable in accordance with its terms.
19.4. Further Assurances. You agree to execute, acknowledge, and deliver all such further documents, and take such further action, as may be reasonably required to carry out and consummate the transactions contemplated by these Terms.
19.5. Non-Waiver. The failure of you or 8eo to exercise or enforce any right or provision of these Terms will not operate as a waiver of your or our right to do so later.
19.6. Severability. If any provision of these Terms is finally determined to be void, unenforceable, invalid, or otherwise contrary to law or equity, you and 8eo agree to reform (or as necessary, authorize the arbitrator(s) or court to reform) these Terms to the extent necessary to cure (or if necessary, delete) such provision, and that the remainder of these Terms that can be given effect without the benefit of such provision will be given effect.
19.7. No Assignment. These Terms are personal to you. Neither these Terms nor any of your rights or obligations may be sold, transferred, delegated, or assigned by you without our prior written consent, and any attempt to do so without such consent will be void, and no rights will devolve by operation of law or otherwise upon any assignee, receiver, liquidator, trustee, or other person. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the Parties and their respective successors, assigns, and legal representatives.
19.8. Headings, Gender, and Number. The descriptive headings in these Terms are inserted for convenience only and do not constitute a part of these Terms. Throughout these Terms, wherever the context requires or permits, the neuter gender will be deemed to include the masculine and feminine, and the singular number to include the plural, and vice versa.
19.9. Entire Agreement. These Terms contain the entire agreement and understanding between you and us with respect to the transactions contemplated hereby, and these Terms supersede and replace any other prior or contemporaneous agreements, terms, or conditions applicable to the subject matter of these Terms.
20. Contacting Us. If you have any questions about this Terms of Service Agreement (including the Privacy Policy and the Acceptable Use Policy), the Service, or your Horn Account, you may contact us by mail at P.O. Box 3739, Sarasota, FL 34230.
HORN ACCEPTABLE USE POLICY
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
This Acceptable Use Policy is part of the Terms of Service Agreement, located here (the "Terms"). Please read this Acceptable Use Policy and the Terms carefully to understand our policies for how you may use the Horn Service. By accessing or using the Horn Website, the Horn Software and Apps, or the Horn Service (as defined in the Terms), you agree to be bound by all of the provisions of the Terms, including this Acceptable Use Policy. Except as otherwise defined herein, all terms used in this Acceptable Use Policy have the meanings set forth in the Terms.
1. Overview. We respect the safety and rights of others, and we require each of our users to do the same. In order to comply with legal requirements and to provide a better Horn experience for all of our users, you must comply with all of the provisions of this Acceptable Use Policy. In general, you must not use the Horn Service, provide any User Content, or create or use any Horn Handles or Channel Names in any way that infringes or violates the rights of 8eo or any other Person, violates the law, or is likely to do those things.
We may modify this Acceptable Use Policy from time to time. Changes to this Acceptable Policy will be made and will become effective as described in Section 4 of the Terms.
2. Intellectual Property Rights.
2.1. Generally. You are not allowed to use the Horn Service in any way that infringes the Intellectual Property Rights (as defined in the Terms) of 8eo or any other Person, and you represent to us that your User Content, your Horn Handle, your Horn Channel Names (any Channel Names you create, own, or control), your Horn Channel Logos (any Channel Logos that you create, own or control) and any other Third Party Materials that you post, display or otherwise make available on or through the Service do not infringe anyone's Intellectual Property Rights.
2.2. Trademarks.
2.2.1. What is a Trademark? A trademark is any word, slogan, symbol or design (such as a logo), or sound that is used by an individual, business, or organization to identify its goods or services and to distinguish them from those created, provided, or sold by others. The purpose of trademark law is to prevent consumers from being confused about who provides or is affiliated with a product or service. The owner of a trademark has the right to prevent others from using its trademarks (or similar trademarks) in a way that is likely to confuse people into thinking that the person using the trademark is the trademark owner or has a relationship with the trademark owner or that the trademark owner approves or endorses the other person's products or services.
2.2.2. Using Trademarks. Your Horn Handle and the Channel Names and Channel Logos you create or control must not:
· Use any of the 8eo trademarks or copyrighted materials (including the names 8eo and Horn and the associated logos) except as expressly permitted by the Terms or with our prior written permission;
· Impersonate or attempt to impersonate any of the 8eo Parties or our employees;
· Use the name of another person, organization, or brand with the intent to impersonate that person, organization, or brand;
· Use anyone else's trademarks in any way that is likely to cause confusion about your relationship with the owner of the trademark or gives the impression that the owner of the trademark approves or endorses you, your User Content, or your Horn Chanel; or
· Be offensive, vulgar, or obscene.
We reserve the right to refuse registration of, or to cancel, remove, or change, any Horn Handle, Channel Name, or Channel Logo in our sole discretion.
2.3. Copyrights. Copyright law protects original works of authorship (such as drawings, photos, music, books, and audiobooks). Copyright can protect the words or images that express an idea, but not facts or ideas themselves. Your use of the Service (including your User Content and Channel Logos) must not infringe anyone's copyrights. You are not allowed to use the Service or any Horn Channel to engage in webcasting or for Internet radio, or otherwise use the Service or any Horn Channel primarily for streaming any copyrighted music, movie soundtracks, books, audiobooks, or other copyrighted sound recordings unless you have the written permission of the copyright owner.
3. Horn Channels for Fans, Commentary, and Parody. If you wish to use a Horn Channel that you create or control as a fan channel or for the purpose of commentary about or parody of another person, organization, team, or brand, you must comply with the rules listed below:
3.1. Channel Name. The Channel Name must not be the exact name of the person, organization, team, or brand that is the subject of the Horn Channel (unless you have written permission). If the Channel Name does include such a name, it must also include a distinguishing word such as "unofficial," "fan", "fake", "not", or "parody" to make clear that the Horn Channel is not provided, approved, endorsed, or sponsored by the subject.
3.2. Channel Logo. The Channel Logo must not be the exact trademark or logo of the person, organization, team, or brand that is the subject of the Horn Channel.
3.3. Channel Description. The Channel Description must include a statement that clearly explains that the Horn Channel is not provided, approved, endorsed, or sponsored by the subject. Appropriate examples include: "Unofficial Fan Channel", "This Horn Channel is not affiliated with...", "This Horn Channel is not endorsed or approved by...", and "Parody Channel about..."
Your Horn Channel may infringe another person's trademark rights even if you follow the above rules, and you understand and agree that you are solely responsible for complying with all applicable laws and for ensuring that you do not infringe the trademark rights (or other rights) of any other person. If you are uncertain whether any particular use would violate anyone's rights, you should consult with an attorney.
4. Safety and Rights of Others. You agree that you will not:
· Use the Horn Service for the purpose of exploiting or harming (or attempting to exploit or harm) minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
· Transmit spam, junk mail, chain letters, pyramid schemes, or the like through the Horn Service;
· Use any software or other technology to attempt to profile or identify any Horn user based on the user's speech patterns, voice, or other audio characteristics associated with the user;
· Transmit through the Service any other person's private or sensitive information, including, for example, Social Security numbers or taxpayer identification numbers, passport numbers, driver's license numbers or other government-issued identification numbers, bank account numbers, credit or debit card numbers, login or authentication credentials (such as passwords), non-public contact information (including phone numbers, street or mailing addresses, and e-mail addresses), addresses or locations that are considered and treated as private, images or videos that are considered and treated as private under applicable laws, or other similar information;
· Transmit through the Service any other person's voice or sound-alike without that person's knowledge and consent;
· Use the Horn Service to engage in phishing;
· Use the Horn Service to publish falsehoods or misrepresentations that could damage or harm 8eo or any other person;
· Submit any User Content that is obscene, defamatory, libelous, slanderous, threatening, harassing, abusive, embarrassing, hateful, or racially or ethnically offensive to any other person, or that is unlawful or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; or
· Use the Horn Service to stalk, harass, or impersonate any person.
5. No Disruptive Activities. We want all of our users to enjoy a high quality experience when using the Horn Service. You agree that you will not:
· Send any User Content to or through the Horn Service that does not comply with this Acceptable Use Policy;
· Access or use the Horn Service using the Horn Account of another user;
· Circumvent, compromise, or undermine the security or integrity of the Horn Website, the Horn Software and Apps, or the Horn Service, or attempt to do so;
· Probe, scan, or test the vulnerability of the Horn Website, the Horn Software and Apps, the Horn Service, or an systems, networks, servers, computers, devices, or equipment owned or controlled by any of the 8eo Parties or our users;
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Horn Website, the Horn Software and Apps, the Horn Service, or any server, network, computer, device, system, or database owned or controlled by any of the 8eo Parties (or any Horn user) or related to, associated with, or connected to the Horn Service;
· Use any automated device, process, or means (such as robots or spiders) to access or use the Horn Service for any purpose, including monitoring or copying any User Content or Horn Materials;
· Attack the Horn Website or the Horn Service via a denial-of-service or distributed denial-of-service attack;
· Use the Horn Service in any manner that we believe could disable, overburden, damage, impair, or interfere with the proper operation of the Service;
· Interfere with or disrupt the performance or integrity of the Service or any data transmitted by or through the Service;
· Engage in any other conduct that, in our determination, restricts or inhibits anyone's use or enjoyment of the Service (including the ability of other users to engage in real-time conversations through the Service) or that may harm any of the 8eo Parties or our users or expose the 8eo Parties or our users them to liability; or
· Transmit any viruses, Trojan horses, worms, malware, or other material which is malicious or technologically harmful through the Horn Service.
6. Banned Users. We reserve the right to permanently ban any user who violates this Acceptable Use Policy (or any other provision of the Terms). You agree that if you are banned you will not, at any time after being banned, access or use the Horn Website, the Horn Software
7. Adult Content. Users are prohibited from uploading, posting, or transmitting any User Content that includes visual depictions of nudity, pornography, sexual acts, the consumption of illegal substances, or acts of violence, or any visual content that is inappropriate for minors.
8. Contacting Us. If you have any questions about this Acceptable Use Policy, or would like to report or flag objectionable material you may contact us by mail at P.O. Box 3739, Sarasota, FL 34230 or by email to legal@horn.co.
HORN PRIVACY POLICY
Last Modified: May 5th, 2015
Effective Date: May 5th, 2015
This Privacy Policy is part of the Terms of Service Agreement, located here (the "Terms"). Please read this Privacy Policy and the Terms carefully to understand our policies and practices regarding how we use your information. By accessing or using the Horn Website, the Horn Software and Apps, or the Horn Service (as defined in the Terms), you agree to be bound by all of the provisions of the Terms, including this Privacy Policy. Except as otherwise defined herein, all terms used in this Privacy Policy have the meanings set forth in the Terms.
1. Introduction. 8eo respects your privacy and we are committed to protecting it through compliance with this Privacy Policy. This Privacy Policy describes the types of information we may collect through your use of the Horn Service and our practices for collecting, using, maintaining, protecting, and sharing that information. This Privacy Policy applies to all information that we collect through the Horn Website, the Horn Software and Apps, and/or the Horn Service. This Privacy Policy does not apply to information that other Horn Users collect about you through your use of the Horn Service (such as the things you say while talking in a Horn Channel). This Privacy Policy does not apply to information we may collect from you or about you in other ways, including through e-mails you may send to us or through third parties.
2. Updates to Privacy Policy. As technology changes and as our business grows and develops, we may modify this Privacy Policy from time to time. Changes to this Privacy Policy will be made and will become effective as described in Section 4 of the Terms.
3. Children Under Age 13. We are committed to protecting the privacy of children under the age of thirteen (13) years (each a "Child" and collectively, "Children"). Access to and use of the Horn Website, the Horn Software and Apps, and the Horn Service by Children are prohibited by the Terms. The Horn Service is not designed for or marketed to Children, and we do not knowingly collect Personal Information (as defined below) from Children. If we learn we have collected or received Personal Information from a Child, we will delete that information. If you believe we might have any information from or about a Child, please contact us at: legal@horn.co.
4. Definitions. As used in this Privacy Policy:
4.1. "Personal Information" means personally-identifiable information (information relating to an individual that can be used to identify, locate, or contact that individual, alone or when combined with other personal or identifying information), such as: name, home or physical address, e-mail address, phone number, or personal characteristics (such as photos, fingerprints, and handwriting), and any Sensitive Information (as defined below), or any other information about an individual that we collect through the Horn Service and maintain in personally identifiable form in combination with other personally-identifiable information.
4.2. "Sensitive Information" means Social Security numbers, passport numbers, driver's license numbers, bank account numbers, credit or debit card numbers, login or authentication credentials (such as passwords), or other similar information.
4.3. "Non-Personal Information" means information or content other than Personal Information, including, for example, aggregated information about our users and other information that does not identify any individual.
5. Types of Information Collected.
5.1. Information You Provide. When you create and use your Horn Account, you may provide us with a wide variety of information, such as your name, postal address, physical address, e-mail address, phone number, billing and payment information, transaction history for your purchases of Paid Subscriptions, your search queries within the Service, messages you send us, and your User Content (as defined in the Terms), and other types of information.
5.2. Information From Your Login Provider. By logging in to the Horn Service through your Login Provider (as defined in the Terms), you give us permission to access, store, and use any information that the Login Provider shares with us from your Associated Account (as defined in the Terms). This information may be provided to us when you create your Horn Account and on a continuing basis until your Horn Account is deleted (or until you disable our access using your Login Provider's settings). We will store and use such information in accordance with this Privacy Policy and in accordance with any applicable rules in the agreement between us and your Login Provider.
5.3. Visitor Information. We may automatically collect information about you when you use the Horn Website, the Horn Software and Apps, and the Horn Service, such as the pages, Horn Channels, and other materials you access, the amount of data transferred, the links you click, the amount of time you spend interacting with each page and Horn Channel, your GPS location data, and other information about your interactions with the Horn Website, the Horn Software and Apps, and the Horn Service, as well as certain standard information that your browser sends to every website that you visit, including your Internet Protocol (IP) address, operating environment (such as browser type and version, browser plugins installed, operating system version, regional and language settings, screen size and/or resolution, windows size, and page size), access dates and times, and referring websites. We may also collect diagnostic information, including without limitation device hardware and operating system information, device state information, unique device identifiers, information relating to how the Horn Website and the Horn Software and Apps function on the device you use to access the Horn Service, and the physical location of such device at the time of a crash. We may share such diagnostic information and other Non-Personal Information with our service providers to diagnose and improve the Horn Website, the Horn Software and Apps, and the Horn Service. The Horn Service may use cookies, Flash cookies, web beacons, and other technologies for a variety of purposes, such as saving and retrieving information about you, your visit, and assisting in displaying relevant promotions and advertising to you. We may use such technologies to share Non-Personal Information with third parties or to retrieve Non-Personal Information from third parties.
5.4. Google Analytics. We may, from time to time, use a tool called "Google Analytics" (including Google Analytics Demographics and Interest Reporting features) to collect information about your use of the Horn Service, which helps us provide content that is relevant to you and optimized for the devices that you use (such as smartphones and tablets). We respect and value your privacy, and we never combine the information collected through the use of Google Analytics with Personal Information. We use the information we receive from Google Analytics only to improve the Horn Service and our content and marketing. Google's use and sharing of information collected by Google Analytics about your visits to this site is restricted by the Google Analytics Terms of Use (http://www.google.com/analytics/tos.html) and the Google Privacy Policy (http://www.google.com/privacypolicy.html). You can opt-out of Google Analytics for Display Advertising and customize Google Display Network ads using Google's Ad Settings (https://www.google.com/settings/ads) tool. As an added privacy measure, you can use the Google Analytics Opt-out Browser Add-on (https://tools.google.com/dlpage/gaoptout/).
6. Use of Non-Personal Information. We may use Non-Personal Information (including, for example, aggregated information about our users or information that does not identify any individual) for any purposes whatsoever (including without limitation, advertising, marketing, enhancing, designing, or developing products and/or services, and research), and we may share Non-Personal Information with others, including our partners, affiliates, and service providers.
7. Cookie Policy. Horn uses cookies and other similar technologies, such as HTML5 local storage, to provide the Horn Website and Horn Service.
7.1. Cookies and Local Storage. Cookies are small text files placed onto your device when you visit and interact with the Horn Website. Local storage is a technology that allows a website or application to store information locally on your device. These technologies enable us to provide and enhance your experience using the Horn Service.
7.2. How Horn Uses Cookies and Local Storage. We use these technologies to provide the Horn Service to you and to analyze and improve the Horn Website, the Horn Software and Apps, and the Horn Service. Our uses generally fall into one of the following categories:
7.2.1. Essential Processes and Security: To enable essential functions of the Horn Service, such as to facilitate logging you in to the Horn Service, facilitating your purchase of Paid Channels and Channel Add-ons, protecting your security, and helping us fight spam, abuse, and violations of our Acceptable Use Policy.
7.2.2. Preferences: To remember information about your browser and your preferences.
7.2.3. Performance, Analytics, and Research: To help us understand and measure how you use the Horn Website and the Horn Software and Apps and to improve the Horn Service.
7.2.4. Advertising: To help us deliver ads, measure their performance, and make them more relevant to you.
7.3. Blocking and Removing Cookies. We are committed to protecting your privacy, as described in this Privacy Policy. Most browsers allow you to modify your settings to accept or deny all cookies or to request your permission each time a website attempts to place a cookie on your device, and most browsers allow you to delete cookies that have already been placed on your device. However, the Horn Service will not function properly if you prevent it from placing cookies on your device.
8. Location Information. We will not share your precise location information in combination with your Personal Information with third parties (except we may share such information with law enforcement or as provided in Section 9.3 below). We may provide more generalized location information (such as county, state, city or event location) to Channel Operators.
9. Use of Personal Information.
9.1. We will only store and use your Personal Information as is reasonably necessary or appropriate in connection with your use of the Horn Service, including: (a) to contact you in connection with your use of the Service, including to respond to your inquiries; (b) for authentication and identification purposes; (c) to enable us to provide the Service; (d) to process your Paid Subscriptions and to provide you with notices about your Horn Account and your Paid Subscriptions; (e) to fulfill any other purpose for which you provide such information to us; (f) in any other way we may describe when you provide the information; (g) to carry out our obligations and enforce our rights; (h) to provide you with relevant advertising and promotions; (i) to ensure your compliance with the Terms and/or to investigate any potential breach of the Terms; and (j) to protect our networks, data, software, or business interests. You understand and agree that we may transfer, process, maintain, and store your Personal Information, your User Content, and other information in any country (or in multiple countries), including countries other than your country of residence or the country or countries where you use the Service.
9.2. We are committed to protecting your privacy and we will not sell or lease your Personal Information to any third party, and we will not knowingly disclose your Personal Information to a third party if we know or have reason to believe that the third party will use your Personal Information for direct marketing purposes. We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences. Even though we do not disclose your Personal Information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
9.3. In addition to using and disclosing your Personal Information in the manner described above and elsewhere in Privacy Policy and the Terms (including, as described in Section 14.4 of the Terms in connection with third party claims alleging infringement of Intellectual Property Rights), we may disclose your Personal Information:
9.3.1. to any person, entity or organization which you consent for us to disclose your Personal Information to;
9.3.2. to a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation or similar proceeding, in which Personal Information held by us about our users is among the assets transferred.
9.3.3. to any of the 8eo Parties (as defined in the Terms), our business partners and agents who provide hosting services, and website and technical support providers, as is necessary or required in connection with the operation, maintenance, and support of the Horn Service;
9.3.4. to any person, entity or organization in order to facilitate the provision of the Horn Service, such as providing your name and payment information to our third party payment processor when you purchase and renew Paid Subscriptions;
9.3.5. to comply with any legal requirements, subpoena, discovery requests, or court orders, to defend any legal or administrative proceedings, or as we believe in good faith is necessary to comply with any laws or legal requirements;
9.3.6. as we believe is necessary or appropriate in an emergency situation, including without limitation, to prevent criminal activity, personal injury or property damage;
9.3.7. to the police, financial institutions or other appropriate authorities in connection with any investigation of suspected criminal or fraudulent activity by any person or entity; and
9.3.8. if we believe it is necessary or appropriate to protect the rights, property, or safety of the 8eo Parties, our users, or third parties (including, without limitation, to facilitate the enforcement of our rights under the Terms).
10. Security. We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, and disclosure. In general, all information transmitted to us through the Horn Service is encrypted using SSL/TLS. The safety and security of your information also depends on you. You are responsible for safeguarding the Login Credentials associated with your Login Provider and notifying us immediately if you suspect your Login Credentials or your Horn Account have been compromised. We urge you to be careful about giving out information in public areas of the Horn Service. The information you share in public areas may be accessed by any Horn User. You are strongly cautioned to never share Sensitive Information with other users through the Horn Service.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to or through the Horn Service. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained in the Service.
11. Third Party Sites. The Horn Service may contain links to other websites that are operated by third parties. Once you have clicked on a link connecting you to such third party website, you will leave the Horn Service and be taken to a website that we do not control. This Privacy Policy does not apply to any Personal Information (or other information) collected on a third party site. We suggest you read the privacy policy of the third party site before providing any Personal Information on such third party site. We are not responsible for any use by any person or entity of any information that you may provide while accessing or using any websites or services provided by a third party.
12. Access to and Change of Personal Information. You may contact us at any time to: (a) request the removal of the Personal Information you provided to us from our databases; and (b) update your Personal Information. However, certain information associated with sales made through the Horn Service may be retained permanently for legal, tax, and business reasons. In addition, because certain Personal Information may be necessary to provide the Service to you, you understand that the removal of that Personal Information may require us to delete your Horn Account. When your Personal Information (or other User Content) is updated or deleted, copies of such information may remain in our backups for a period of time.
13. Contacting Us. You may contact us with questions relating to this Privacy Policy by writing to us at: P.O. Box 3739, Sarasota, FL 34230.
Horn Opt Out Notice
I am writing to provide notice that I am opting out of the Agreement to Binding Arbitration and the Class Action and Class Arbitration Waiver contained in the Horn Terms of Service Agreement. Pursuant to the opt-out procedures listed in the Horn Term of Service Agreement, I am providing the following information:
My Name:
My Address:
My Phone Number:
My Horn Handle:
My E-mail Address associated with the Login Provider used to access Horn:
Signature:
Date:
Please mail this completed form to the following address:
P.O. Box 3739, Sarasota, FL 34230.
This Horn Opt-Out Notice must be postmarked no later than sixty (60) days after the date you accept the Horn Terms of Service Agreement for the first time. It is your responsibility to mail the Opt-Out Notice by the applicable deadline and to retain proof of mailing and delivery.
