Date: March 29, 2021
Welcome to Racket, a product from CAPICHE RESEARCH CORPORATION (“RACKET,” “CAPICHE,” “we,” or “us”). These Terms of Service are a legally binding contract between you and Racket regarding use of the Service (as defined below). We may refer to you, the party accepting these Terms, as “you” or as “Host” or “User,” each as defined below.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
Racket SERVICE OVERVIEW.
CAPICHE RESEARCH CORPORATION provides the Racket service, an audio recording and hosting platform. Content creators (“Hosts”) may record and broadcast live, interactive audio shows (“Broadcasts”) and upload text and graphics, which together with the audio recording will be stored by Racket and published at the discretion of hosts.
Broadcasts are streamed and published over the internet, where listeners (“Users”) can play the live audio and/or the recording, chat with hosts, and, if invited by a host, join the live show and record audio as well. Users may also interact with other users of the Racket service. Collectively, we refer to this platform and all of its features as the “Service”.
You must be at least 18 years old or the age of majority in your jurisdiction to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old or the age of majority in your jurisdiction; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
CHANGES TO THESE TERMS
We reserve the right to change these Terms from time to time, with or without notice to you. If you continue to use the Service, you consent to the new Terms. Any changes to these Terms will become effective on the “Effective Date” indicated above. If you continue to use the Service after the Effective Date, you consent to the new Terms. We will always have the latest Terms posted on the Service.
Before being able to use the Service, you will be required to first register for a user account (“Account”). To do so, you must enter your email address, choose your password, and share personally identifiable data including your name.
In providing your data, you consent to data processing to create and maintain your account on the Service, and to use that data in third-party services used to offer the Service.
You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account if any information provided by you proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to, or share your Account with, any third party. You agree to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account.
If you wish to delete your account and have your personal data and any Broadcasts and other user generated content created by you removed from the Service, contact the Racket team at the contact information included in the final section of this document. If you request your account to be deleted, your personally identifiable information will be removed from the Service along with content you initiated the creation of as a Host—with the exception that your email address may be retained to prevent you from receiving notifications from the Service unless you request that your email address be fully removed from the Service as well.
The Service operates a platform that allows users to record, broadcast, and publish audio content, and interact with other users’ content with feedback, comments, and other information (the “User Content”). By using the service, you acknowledge that any participation by you in any audio recording or broadcast will be recorded as part of the User Content.
All User Content is provided by our users and solely reflects the opinions and views of the users publishing such information. Our role with respect to User Content is limited. As an Internet Service Provider that only provides access to User Content and that does not control such User Content, we are exempt from liability under Section 230 of the U.S. Communications Decency Act and any similar laws in other jurisdictions. By accessing, using, or attempting to access or use the Service, you understand and agree that:
- We are not responsible for, and do not endorse, any User Content;
- We make no guarantees about the accuracy, currency, suitability, reliability or quality of the information in User Content;
- We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful User Content made available by users or any third parties; and
- User Content shall not be relied upon as financial, business, investment, or legal advice.
You may be able to submit, post, create, or display User Content on the Service (“Your Content”). Your User Content, including all audio, text, pictures, graphics, comments, and other data or information that you record on or submit to the Service, is generated, provided by, and owned by you. Your content is an original work by you, and you retain the copyright to any User Content you created on the Service as a Host, under the restrictions set forth in these terms of service. If you participate in another Host’s broadcast, or share another user’s Content in the service or on third-party services, you acquire no ownership rights over that user’s Content.
If you create User Content on the Service, you hereby grant us and our subsidiaries and affiliates a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable, license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, publicly display, translate, and otherwise use Your Content, in any and all media or distribution methods, in connection with the operation of the Service or the promotion, advertising, or marketing of the Service and our business. To the extent that you provide any feedback to us on or about the Service, you agree that such feedback will be subject to the license contained in this paragraph. Additionally, if you participate in creating User Content with another User, you grant that Host the right to use your likeness, audio recording, and any other user content related to that Broadcast, and warrant that any content you contribute abides by the restrictions set forth in these terms of service.
Individual Users on the Service have control over the User Content they publish on the Service and may at any time remove or change User Content without notice, or may request Racket to remove such content on their behalf. We make no guarantee that User Content will continue to be available on the Service, and shall have no liability if you are unable to access any User Content that may have been available on the Service.
RESTRICTIONS ON YOUR USE
By accessing, using, or attempting to access or use the Service, you agree that your use of the Service will be subject to the following restrictions:
Your Content. By using the Service you warrant that:
- you are the creator and owner of the user content, or have the necessary licenses, rights, consents, and permissions to authorize and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Racket, the Service, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause Racket to violate any law or regulation; or (iv) is false, deceptive, misleading, or fraudulent; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
Compliance with the Law. You will not use the Service for any illegal or unlawful purposes. Your use will not violate any law, regulation or these Terms.
Restricted Activities. You will not reproduce, perform, create derivative works from, republish, upload, post, transmit, or distribute in any way whatsoever any User Content (excluding Your Content) or any other materials from the Service without our prior written permission. You may share other Users’ User Content via the Service, but may not download, reproduce, or otherwise distribute User Content from other Users. Further, you will not use the Service in any manner that (i) violates the security of any computer network, or cracks any passwords or security encryption codes; (ii) runs any form of auto-responder on the Service, or any processes that run or are activated while you are not logged into the Service, or that otherwise interfere with the proper working of the Service (including by placing an unreasonable load on the Service’s infrastructure); (iii) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Service; (iv) circumvents, removes, alters, deactivates, degrades or thwarts any technological measure or content protections of the Service; or (v) attempts to probe, scan, or test the vulnerability of the Service, or any associated system or network, or to breach security or authentication measures without proper authorization.
If we have determined, in our sole discretion, that you have violated any of the foregoing restrictions, we may exercise any and all legal rights available to us, including, without limitation, terminating your use of the Service.
USE OUTSIDE OF THE UNITED STATES
We make no claim that the Service is appropriate or may be used outside of the United States. If you access the Service from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
TERMINATION OF YOUR USE
Any provision of these Terms that by its nature and context is intended to survive its termination will continue to apply even after your use of the Service is terminated, whether by you or us. These include, without limitation, provisions related to limitation of our liability, disclaimer of warranties, our intellectual property rights, indemnity, and dispute resolution.
OUR INTELLECTUAL PROPERTY RIGHTS
The Service contains important and proprietary property owned by us, including software, that constitutes our trademarks, trade secrets and other intellectual property. Nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We only grant you a non-exclusive, non-sublicensable, and revocable license to use the Service for the purposes permitted by these Terms, and only for as long as you are permitted to access the Service. Your right to access and use the Service is personal to you and is not transferable by you to any other person or entity.
The Service and the materials on the Service (specifically including any User Content, but excluding Your Content) either belong to us or are licensed to us by third parties including other Users that grant us permission to use such material, and in any case are protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions and other intellectual property laws. All company or non-profit logos or product names are trademarks or registered trademarks of their respective owners. Nothing contained on these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Service or any information displayed on the Service except: (a) as expressly permitted by these Terms or (b) with our prior written permission or the prior written permission of such third party that may own the trademark or copyright of information displayed on the Service.
COPYRIGHT TAKEDOWN NOTICES
We value your intellectual property rights. As such, we reserve the right to suspend and/or terminate any user’s access to the Service who is found to have violated any laws related to intellectual property or otherwise infringed on the intellectual property rights of us, our users, or any third parties. In the event that you have a good faith belief that your intellectual property rights or the rights of someone else have been violated on our Service, and you want us to delete, edit, or disable the User Content in question, you must provide us with all of the following information, as required by the Digital Millennium Copyright Act of 1998:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
- A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For this notification to be effective, you must provide it to our designated agent at the following address:
CAPICHE RESEARCH CORPORATION
PO Box 7775
San Francisco, California 94120-7775 USA
Our Service is integrated with services provided by third parties, along with services from other providers which we may additionally integrate with in the future, with or without notice to these Terms of Service. We have no control over third parties and make no guarantees about, and assume no responsibility for, the information or services provided by third parties.
Additionally, we may provide links to third-party websites and businesses and otherwise may provide information on the Service. You acknowledge and agree that we are not responsible for the accuracy, content, or functionality of the services or information provided on or by such third-party websites or businesses, and we do not endorse, nor assume any liability related to your use of, such websites, businesses or information in any way. Nothing on the Service shall be considered an endorsement, representation, or warranty of anything contained in such third-party communications, including all products or services advertised therein, if any.
ASSUMPTION OF RISK
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (SEE BELOW), AS TO THE SERVICE, THE USER CONTENT, OR ANY OTHER INFORMATION OR MATERIALS ON THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
DISCLAIMER OF WARRANTIES; “AS IS”
WE ARE MAKING THE SERVICE AVAILABLE “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICE. WE DO NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM OR RELATED TO ANY OF THE FOLLOWING: ANY HARM OR DAMAGE CAUSED BY, OR OTHERWISE RELATED TO, YOUR RELIANCE ON INFORMATION PROVIDED THROUGH THE SERVICE; ANY LOSS OR UNAUTHORIZED DISCLOSURE OF DATA; ANY HARM OR DAMAGE CAUSED BY, OR OTHERWISE RELATED TO, YOUR USE OF OR INTERACTION WITH ANY SERVICES OFFERED THROUGH THE SERVICE; AND ANY VIOLATIONS OF APPLICABLE LAWS, RULES, REGULATIONS, AND OTHER AGREEMENTS. THIS LIMITATION SHALL APPLY REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE EXCEED ONE HUNDRED DOLLARS ($100.00). YOU AGREE THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES OR CAUSES OF ACTION, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
In the event that any third party brings a claim against us and/or our subsidiaries, affiliates, directors, officers, employees, or other agents (collectively, the “Indemnified Parties”) related to Your Content or your actions, information, or any other use of the Service by you, you agree to indemnify, defend, and hold harmless such Indemnified Parties from and against any and all claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) (collectively, the “Claims”) relating to such Claims. We will notify you promptly of any such Claim and will provide you with reasonable assistance, at your expense, in defending any such Claim; provided, however, that our failure to so notify you shall not relieve you of your indemnity obligations, but instead shall reduce those obligations by the amount of damages or increased costs and expenses attributable to our failure to give notice. We reserve the right to approve counsel retained by you, to take control of the defense (at our expense) of any Claim for which indemnity is required, and to participate in the defense of any Claim (at our expense) for which indemnity is required. You may not settle any Claim without our prior consent.
You agree to resolve any dispute, claim, or controversy with us and our subsidiaries and affiliates arising out of or relating to your use of the Service in the manner set forth below. First, we both agree to attempt in good faith to resolve the dispute informally by contacting each other by email (you can email us at the address listed at the end of these Terms). Second, if the dispute is not resolved through informal resolution, we both agree to attempt in good faith to resolve the dispute through mediation administered by JAMS, which shall take place in San Francisco, and the costs of which shall be divided equally between you and us. Third, if the dispute is not resolved through informal resolution and mediation, we both agree to participate in binding arbitration administered by JAMS, which shall take place in San Francisco.
Either you or we may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described above.
We both agree that, in the event of arbitration, or in the event of a lawsuit as permitted by this section titled “Dispute Resolution” or otherwise, the prevailing party shall be entitled to costs and fees (including reasonable attorneys’ fees). Arbitration pursuant to this Section shall be confidential, and neither you, nor us, nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
YOU AND WE HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
If any portion of this arbitration agreement is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect. Nothing contained in this section titled “Dispute Resolution” shall limit our ability to take action related to your access to the Service as provided in these Terms.
GOVERNING LAW; VENUE
These Terms shall be governed by the laws of the State of California, without regard to conflict of law provisions. In the event that a lawsuit is filed where permitted under the provisions above, or in the event that the provisions above are found not to apply to you or to a given dispute, we both agree that any judicial proceeding will be brought in the federal or state courts of San Francisco. Both you and we consent to venue and personal jurisdiction there.
If, for whatever reason, any term or condition in these Terms is found unenforceable, all other terms and conditions will remain unaffected and in full force and effect. The failure to enforce any provision of these Terms is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
These Terms shall be binding on the parties and their respective successors and assigns. These Terms may be assigned by us without restriction. These Terms may not be assigned or otherwise transferred by you without our prior written consent.
HEADINGS USED IN THESE TERMS
The section headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms in any way.
If you have any questions about these Terms or our Service, please feel free to contact us by email at email@example.com.