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Effective August 16, 2021
You agree that by registering or creating an account, accessing, downloading, installing or using the Services or JOOKI products, or any part thereof, you are entering into a legally binding agreement with JOOKI and you agree to abide by the Terms, including all rules, terms, conditions, restrictions and notices therein. If you do not wish to be bound by the Terms, do not access, download, install, register or create an account, or otherwise use any of the Services or JOOKI products, as doing so will result in your acceptance of the Terms.
- Services. The Services are provided for you to learn about JOOKI and the Services, to learn about how to use the Services, to purchase the Services, to facilitate your use of third-party goods and services with the Services (such as Spotify), and to associate your own MP3 files to JOOKI. JOOKI itself does not provide any of the music or music services offered by the service providers via the Services. JOOKI is not responsible for any problems that may result from any information, services, products, or anything else you learn about or use through the Services. While the Services may include content that provides information or services for music or music services that can be played via JOOKI’s products, JOOKI makes no representations as to the veracity or effectiveness of such content or services provided by such service providers. Use of the Services will not ensure that your child will listen to the music played through or use any JOOKI product, nor is JOOKI responsible for or liable to you in any way for any service provider’s failure to provide, timely provide, or properly provide the requested music or music services.
The Services may also contain information regarding health or medical issues or similar topics. All such information is provided for entertainment purposes, only and JOOKI makes no representation as to the veracity or effectiveness of such content. The Services are not intended to diagnose, treat, cure, or prevent any disease. JOOKI is not responsible for any medical issues that may occur, continue or result from any information, services, products, events or anything else You receive, send, purchase, use or learn about on, through or in the Services. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical issue. Never disregard professional medical advice or delay seeking it because of something You have read or received on, through or in the Services. USE OF THE SERVICES IS NOT A CURE FOR ANY HEALTH OR MEDICAL ISSUES.
- Materials. The information and materials provided by or on behalf of JOOKI on or through the Services, including without limitation any content, data, text, pictures, graphics, audio, video, icons, surveys, software, code, applications, and updates for use on or through the Services, links, and other content, features and services available on or through the Services (collectively, the “Materials”) are provided for entertainment purposes only.
- Limited License. The Services are provided for entertainment purposes and personal use only. JOOKI hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Services for you and your children’s personal entertainment purposes, subject to your complete compliance with the Terms and any and all other terms and policies set forth on or in the Services. Except as expressly provided in the Terms, JOOKI does not grant you any other express or implied rights or licenses in or to the Services or the Materials, and all rights, title and interest that JOOKI has in the Services and Materials are retained by JOOKI, even after access or usage on your computers, mobile phones, tablets, and/or other devices.
Except as lawfully allowed or expressly set forth in the Terms, you may not modify (including without limitation making derivative works), copy, adapt, reverse engineer, de-compile or otherwise reduce to human perceivable format, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, transfer, license or sublicense, publicly display, or sell in any form or by any means, in whole or in part, any of the Services or Materials without JOOKI’s express prior written permission.
JOOKI reserves the right to revoke your right to use any or all of the Services at any time as further set forth in Section 19 herein. You acknowledge that no monetary value can be attributed to the time you spend accessing and using the Services and that, but for the limited and terminable license granted herein, you are not entitled under the law to use or have access to the Services and/or the Materials.
- Ownership. You acknowledge that the Services are protected by and/or embodies copyrights, trademarks, patents, trade secrets and/or other proprietary rights owned by JOOKI, its parent company and/or their respective licensors, including without limitation the selection, coordination, arrangement, compilation, assembly and any enhancements thereto, and that these rights are valid and protected in all media existing now or later developed and under United States and foreign laws. You agree that the Services and Materials (and any intellectual property and other rights relating thereto) are and will remain the property of JOOKI and/or its parent company. TOYTOUCH® and JOOKI® are registered trademarks of JOOKI’s parent company, Muuselabs SA/ NV. The trademarks, trade names, trade dress, logos, and service marks displayed on or in the Services, are the trademarks of JOOKI or its parent company, licensors, and vendors and/or other third parties. Nothing contained on or in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the JOOKI marks, logos or trade dress without the express written permission of JOOKI, its parent company or the third-party owner of any such mark, logo or trade dress. Misuse of any mark, logo or trade dress is prohibited. You acknowledge that you do not acquire any ownership rights in or to any of JOOKI’s or its parent company’s or licensor’s intellectual property by virtue of your access or use of the Services and/or the Materials.
You may not circumvent or disable any content protection features used on or in the Services and must retain all trademark, copyright and other proprietary notices on downloaded and copied Materials, and any such downloads or copies are subject to the terms and conditions of the Terms.
- Account. In order to access certain areas of or participate in certain activities contained on or in the Services, you are required to register or obtain an account (“Account”). You acknowledge and agree that you have no ownership or other proprietary interest in any Account. To create an Account, JOOKI may ask or require you to provide JOOKI or its service providers with certain personal information (e.g., your full name, address, telephone number and email address) and/or social media or other services login information. Providing JOOKI and/or any service provider with your personal information or your social media or other services login information is your choice. Each time you decide to provide JOOKI or any service provider with your personal information, you agree to: (a) provide accurate, current and complete information about yourself as prompted by JOOKI’s registration form or process (including your current email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, JOOKI has the right to terminate your access to and use of the Services (or any portion thereof) or your participation in any activity or service contained on or available through the Services.
In addition, your access to and use of the Services will depend on the capabilities of your mobile device and mobile carrier, as well as on the territory where you use the Services (since certain functions may not be available and/or authorized in certain territories).
In order to access certain areas of or participate in certain activities or services contained on or in the Services, you will be required to select or be assigned a username and/or password. Your username is subject to certain terms and Codes, as set forth in Sections 7 and 8 below. You agree that JOOKI has the right in its sole discretion to suspend or terminate your Account, your username, or refuse any and all current or future use of the Services (or any portion thereof).
- Username and Passwords. JOOKI may refuse to grant you a username in its sole discretion for any reason, including without limitation if it impersonates someone else or misleadingly implies an association with the persona of another person or entity, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, or for any other reason as determined by JOOKI in its sole discretion. Your selection and/or use of a specific username does not convey any ownership or rights in that username and JOOKI reserves the right to revoke and/or reassign any username in its sole discretion. You understand and agree that JOOKI reserves the right to change, remove, alter or delete any username, with or without prior notice to you, at any time and for any reason in JOOKI’s sole discretion.
YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY AND SECURITY OF YOUR USERNAME AND PASSWORD AND SOCIAL MEDIA AND OTHER SERVICES LOGIN INFORMATION. YOU ARE SOLEY RESPONSIBLE FOR ALL ACCESS TO AND USE OF YOUR ACCOUNT, INCLUDING ANY AND ALL ACTIVITIES (INCLUDING USE OR PROVISION OF ANY SERVICES) THAT ARE CONDUCTED THROUGH THE USE OF YOUR USERNAME AND PASSWORD WHETHER OR NOT AUTHORIZED BY YOU. We encourage You to use “strong” passwords (passwords of at least 10 characters in length that use a combination of upper and lower case letters, numbers and symbols) for Your Account
You agree not to transfer or resell your or otherwise convey your Account or the right to use your Account or any rights therein to anyone. If you have reason to believe that your Account is no longer secure, you must: (i) promptly change your password, and (ii) immediately notify JOOKI of the problem by emailing us at firstname.lastname@example.org (with the subject line: “Account Security Issues”).
You may not use anyone else’s Account at any time and you may not allow anyone else to use your Account at any time. You agree that JOOKI will not be liable for any loss you may incur as a result of someone else using your Account, either with or without your knowledge, and you further agree that you will be liable for losses incurred by JOOKI or another party due to someone else using your Account.
- Code of Conduct. While using any of the Services and/or Materials, you agree to follow the standards set forth below (the “Codes”), and you agree not to:
- Create a false identity or impersonate any person;
- Create, post or transmit any content or message containing profanity, sexually graphic or offensive language, including any uses of characters such as \@#$% to replace letters;
- Engage in any activity or send, transmit, post or make available any content or message that is false, intentionally misleading, disruptive, unlawful, harmful, threatening, abusive, harassing, rude, defamatory, hateful, vulgar, inciteful, racist, illicit, illegal or otherwise objectionable;
- Submit content, materials or Submissions (defined herein) that are subject to the intellectual property rights of a third party, or otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have permission from the owner to do so and to grant JOOKI all the license rights necessary to transmit or maintain such content, material or Submissions;
- Send, post, transmit or make available any material non-public information about any person or entity without the express authorization to do so;
- Send, post, transmit or otherwise make available any advertisements, solicitations, chain letters, pyramid schemes, junk mail, SPAM, investment opportunities or other unsolicited or unauthorized commercial or promotional content, materials, or communication;
- Institute an attack upon any server used in connection with the Services or any portion thereof or otherwise attempt to disrupt such servers;
- Send, post, transmit or otherwise make available any material or Submissions regarding hacking, cracking, exploiting, or otherwise making improper use of the Services;
- Attempt to or actually restrict or inhibit any other user from using and enjoying the Services;
- Use any robot (bot), spider, scraper or other unauthorized or automated means to modify, use or access the Services, or any portion thereof;
- Send, post or transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of an intentionally destructive nature;
- Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble all or any portion of the Services or the Materials;
- “Frame” or “mirror” any part of the Services without JOOKI’s prior written authorization;
- Attempt to obtain passwords, other Account information, or any private information from any other user of the Services, including without limitation, the collection of personal information about others, such as email addresses or geolocations;
- Buy, sell or trade any Account;
- Access or use another user’s Account without permission;
- Harvest or collect any information about users of the Services;
- Use the Services in any manner that violates any applicable laws or regulations or is prohibited by these Terms; and/or
- Assist or permit any persons in engaging in any of the activities described in this listing of the Codes.
While using the Services and the Materials, you agree to comply with these and all Codes, as well as all applicable laws, rules and regulations. JOOKI has the sole discretion to delete, suspend, terminate or block your access to the Services and to delete, suspend, terminate or close your Account, with or without prior notification to you, for any violation of the Terms, including any of the Codes.
JOOKI reserves the right, with or without prior notice, to: change descriptions or references to goods or services; limit the available quantity of any good or service; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Services with any good or service. Price and availability of any good or service offered through the Services is subject to change without notice. Refunds and exchanges shall be subject to the applicable JOOKI’s Return Policy – located here. Descriptions or images of, or references to, third-party goods or services on the Services do not imply JOOKI's endorsement or sponsorship of such goods or services.
You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred, including all delivery charges. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not the responsibility of JOOKI or any applicable third party. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT. Unless otherwise indicated, all prices are in US Dollars. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or any purchase you make on or through the Services.
- Third Party Sites/Services. The Services may include links to other websites, apps, data or services solely as a convenience to you (collectively, the “Linked Sites”). The inclusion of any Linked Site does not imply endorsement by JOOKI or any association with the operators of such Linked Sites. You are responsible for viewing and abiding by the privacy statements and terms of service/use posted at any third party or Linked Sites. You acknowledge and agree that the information, products, materials and services on Linked Sites is not under the control of JOOKI. Access and use of any Linked Sites, including the information, products, materials and services on any Linked Sites or available through any Linked Sites, is solely at your own risk, and you acknowledge and agree that JOOKI is not responsible or liable, directly or indirectly, for any loss or damage caused or alleged to be caused by your use of any or dealings with any Linked Site.
Any dealings with third parties included in within, on or linked to or with the Services, including the delivery of and payment for goods and services, or any other terms, conditions, warranties, or representations associated with such third parties, are solely between you and that third party. You acknowledge and agree that JOOKI is neither responsible nor liable for any part of such dealings with any third parties.
- Submissions. The Services may include features that allow you and others to submit, post, comment, display, and/or transmit information, ideas, opinions, photographs, images, video, creative works or other information or content, messages, transmissions, ratings or material to or through the Services (“Submissions”).
You agree that JOOKI may redistribute content you send/upload/post to the Services. By sending, posting or transmitting to any area of the Services, you grant JOOKI and its owners, designees, representatives, affiliates, and agents a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, digitally display, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you or the provider of the Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on JOOKI’s part and JOOKI will not be liable for any use or disclosure of any Submissions. You agree not to transmit any Submission to or through the Services, or to JOOKI that you consider to be confidential, and any and all Submissions shall be deemed non-confidential. You are responsible and liable for any and all of your Submissions.
JOOKI is not responsible for any Submissions, and you agree that JOOKI assumes no liability whatsoever for any Submissions sent or posted by you or any third party. Under no circumstances will JOOKI or its parent company, owners, designees, representatives, affiliates, and agents be liable for any loss or damage caused by your reliance on the Submissions or on any information or materials obtained through the Services. JOOKI has no obligation to monitor the Services or any Submissions that you or other persons or parties transmit or post on or through the Services. You acknowledge and agree that JOOKI has the right, but not the obligation, to do any or all of the following, at its sole discretion: (i) alter, edit, remove, or refuse to post or allow to be posted or stored any Submission or message and/or (ii) disclose any Submission or message or any communication through the Services, and the circumstances surrounding the transmission thereof, to any third party in order to (a) protect JOOKI and its parent company, employees, officers, owners, directors, shareholders, agents, representatives and affiliates, and the Services’ users and visitors; (b) to comply with legal obligations or governmental requests; and (c) to enforce these Terms; or for any other reason or purpose.
- Right to Modify. JOOKI reserves the right, at any time, to modify, suspend, or discontinue the Services, and/or any part or parts thereof with or without notice, including terminating, eliminating, supplementing, modifying, adding to or discontinuing any content, functionality, promotion, or feature of the Services, the hours that the Services are available, or any fees or charges in connection with the access or use of the Services. You agree that JOOKI will not be liable to you or to any third party for any such modification, suspension, or discontinuation.
- Use & Access. YOU MUST BE AT LEAST 18 YEARS OF AGE TO (a) USE THE SERVICES (OTHER THAN USING A JOOKI PLAYER), (b) USE ANYTHING ACCESSIBLE OR AVAILABLE ON OR THROUGH THE SERVICES, (c) CREATE OR OBTAIN AN ACCOUNT, OR (d) TRANSMIT/SUBMIT/POST ANY PERSONAL INFORMATION. By accessing, using and/or submitting information to or through any of the Services, you agree and represent that you are at least 18 years of age or older and otherwise have the legal capacity to enter into these Terms.
UNDER 18: IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE YOUR CONSENT TO YOUR CHILD’S USE OF THE SERVICES, INCLUDING THROUGH YOUR ACCOUNT, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH CHILD’S ACCESS OR USE OF THE SERVICES.
Pursuant to 47 U.S.C. Section 230(d), as amended, JOOKI hereby notifies you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. The Services, other than the JOOKI player are not directed to, not intended for and may not be used by anyone under the age of 18.
- Sweepstakes/Contests. From time to time JOOKI may offer or allow you to participate in promotions, giveaways, contests or sweepstakes (each, a “Promotion”) through the Services. Participation in any Promotion is subject to the Official Rules governing that Promotion. JOOKI may announce rules in connection with any Promotion, but regardless of whether specific rules are announced, all such opportunities will be controlled by the Terms, unless explicitly superseded by Promotion-specific rules. If you choose to participate in a Promotion, JOOKI may collect your personal information, such as your name, address, age, telephone number, email address or other contact information. In addition, as a condition to receiving any awards or prizes for participating in such Promotions, you may be required to provide additional information, to sign a release, or to authorize the use of certain biographical or other information about you in JOOKI’s advertising and marketing materials. Please also be aware that if a third party administers the Promotion, your participation may be subject to additional terms and conditions, and you should specifically read such third party’s rules, terms of service, and privacy policies before participating. You agree that JOOKI is not responsible for such third parties’ actions or inactions with respect to such Promotions.
- Jurisdictional Issues. Regardless of the language used thereon, access to and use of the Services from any jurisdiction where the content, products or services is illegal is strictly prohibited. JOOKI makes no representation that the Services are appropriate or available for use in any jurisdictions outside the United States and those who choose to access or use any of the Services from such other jurisdictions do so on their own initiative and at their own risk, and are responsible for compliance with local laws, rules or regulations, including, without limitation, rules about the internet, data, email, or privacy. JOOKI reserves the right to limit the availability and quantity, if applicable, of the Services or any other product or service provided by JOOKI, to any person, geographic area or jurisdiction, at any time and in JOOKI’s sole discretion.
- Export Control. Any software or application of or available on or in the Services is subject to United States export controls. No software or application may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods or which is subject to other applicable U.S. trade sanctions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. If applicable, by downloading or using any such software or application, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, regardless of whether such transmission is permitted under the Terms or by applicable law.
- Unsolicited User Ideas. JOOKI does not accept or consider unsolicited ideas, including ideas for new promotions, products, applications, technologies, processes or other ideas or inventions (collectively, “User Ideas”). You must not transmit any User Ideas to or through the Services or to JOOKI that you consider to be confidential or proprietary. You agree that any and all User Ideas are non-confidential and non-proprietary and need not be treated as confidential and/or proprietary. You are responsible and liable for any User Ideas. You agree that by submitting any User Idea to JOOKI, including any concepts, know-how or ideas, you hereby transfer all rights in such User Idea to JOOKI (and its parent company and their respective successors and assigns), without payment or accounting to you or others. JOOKI is not obligated to review, evaluate, publish, or use any User Idea.
- Termination. Your right to access and use the Services will remain effective until terminated in accordance with the Terms. JOOKI may delete, suspend, terminate or block your access to the Services and/or suspend, terminate, modify, or delete your Account (all, a “termination”), with or without notice to you, at any time for any reason or for no reason, including without limitation, for violation or suspected violation of the Terms. For example, your access may be blocked and/or your Account deleted without warning if JOOKI believes, in its sole discretion, that you have provided information that is false, obscene or infringing on the right of another. Upon termination, your right to access and use the Services and Materials, including your Account, will immediately cease. In addition to its termination rights, JOOKI also reserves the right to refuse service to anyone and to remove any content or Submission for any reason whatsoever in its sole discretion, including without limitation, if JOOKI becomes aware that you are a convicted felon or sex offender.
If JOOKI terminates and thereby causes your license to be revoked, you agree that JOOKI will not have any liability to you for any time spent by you accessing or using the Services, and/or your information or data contained in or used with the Services, your Account, or for any other reason whatsoever.
You may terminate your Account by logging into your Account and deleting it, or by sending an email email@example.com with the subject line “Termination Request”). JOOKI may terminate and delete your Account, including any information associated with your Account, in JOOKI’s sole discretion, if your Account has been inactive for a period of at least 12 months. Your Account will be considered inactive if you do not login to the Services with your username and password and/or social media or other services login information.
All provisions of the Terms that may reasonably be construed as surviving the termination of the Terms will survive any termination of the Terms.
- Disclaimers. THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIALS, PRODUCTS OR SERVICES OBTAINED ON OR AVAILABLE THROUGH THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SERVICES, IS ENTIRELY AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, JOOKI AND ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
JOOKI AND ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE SERVICES, WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES (OR ANY PART THEREOF), THE SUBMISSIONS, THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE ON THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NO OPINION, ADVICE OR STATEMENT OF JOOKI OR ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SERVICES, IN THE MATERIALS, OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
BECAUSE SOME LAWS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME OR ALL OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
NOTWITHSTANDING THE FORGOING, JOOKI OFFERS A LIMITED WARRANTY FOR ITS JOOKI PLAYER. For more information on the JOOKI player limited warranty, click here.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER JOOKI NOR ANY OF ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE OR WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOST REVENUES OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, THE SUBMISSIONS, ANY LINKED SITES OR ANY CODE, MATERIALS, PRODUCT OR SERVICE LICENSED, ACCESSIBLE OR USABLE THROUGH THE SERV9CES, EVEN IF JOOKI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JOOKI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AVAILABLE ON THROUGH THE SERVICES; (II) PERSONAL INJURY (INCLUDING ANY MEDICAL ISSUES) OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF ANY OF THE SERVICES, INCLUDING YOUR CHILD’S USE OF THE JOOKI PLAYER; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES OR OUR SERVERS OR SYSTEMS BY ANY THIRD-PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, INCLUDING ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE ON OR IN THE SERVICES, THE SUBMISSIONS, MATERIALS OR PRODUCTS OR SERVICES AVAILABLE ON, THROUGH OR IN THE SERVICES IS TO STOP USING THE SERVICES, SUBMISSIONS, MATERIALS, OR PRODUCTS OR SERVICES, AS APPLICABLE.
FOR THE SERVICES WHICH ARE PAID FOR OR ARE NOT PROVIDED FOR FREE, THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF JOOKI FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU TO JOOKI IN THE PRECEDING TWELVE (12) MONTHS, IF ANY, TO ACCESS OR USE THE SERVICES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
FOR THE SERVICES WHICH ARE UNPAID OR PROVIDED FOR FREE, THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF JOOKI FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE $50 US. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 21 APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF JOOKI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY ADDITIONAL LEGAL RIGHTS WHICH YOU MAY HAVE AS A CONSUMER REMAIN UNAFFECTED BY THESE TERMS. THE LIMITATIONS OF LIABILITY IN THIS SECTION 21 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
NO COMMUNICATION OF ANY KIND BETWEEN YOU AND JOOKI OR A REPRESENTATIVE OF JOOKI CONSTITUTES A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER. MULTIPLE CLAIMS WILL NOT INCREASE THE MONETARY DAMAGES LIMIT STATED HEREIN.
If you are a resident of a jurisdiction that requires a specific statement regarding release, then the following applies. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT JOOKI OFFERS THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIALS, PRODUCTS AND SERVICES PROVIDED ON, THROUGH OR IN THE SERVICES, IN RELIANCE UPON THE ABOVE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, THAT THESE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND JOOKI. JOOKI WOULD NOT BE ABLE TO PROVIDE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIALS, PRODUCTS AND SERVICES PROVIDED ON, THROUGH OR IN THE SERVICES, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY.
- Indemnification. You agree to indemnify, defend and hold harmless JOOKI, its parents, subsidiaries, company, affiliates, licensors, suppliers, advertisers and sponsors, and its and their directors, officers, employees, consultants, agents and other representatives, from and against any and all claims, damages, losses, costs (including without limitation, reasonable attorneys’ fees and expenses) and other expenses that arise directly or indirectly out of or from: (a) any allegation that you violated any law or the rights of any third party, including, but not limited to, any allegation that any Submission or any information you post, submit to JOOKI or transmit to or through the Services infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or any other right of any third party; (b) your breach or violation of the Terms, including the Codes, or any applicable laws or regulations; (c) your access to and use or inability to use of any of the Services and the Materials; (d) any viruses, spyware, or other similar harmful or intrusive program code posted, submitted or transmitted by you to or through the Services or to JOOKI; and/or (e) any claim that one of your transmissions or postings, Submissions, or User Ideas caused or is alleged to have caused (and/or is causing) damage to a third party, including without limitation, libel, defamation, loss of or harm to reputation or any other damage whatsoever. JOOKI and its parent company and their respective successors and assigns reserve the right, at their own expense, to participate in and/or assume control of the defense of any matter subject to indemnification by you under this Section 22. You agree to fully cooperate with JOOKI and its parent company and their respective successors and assigns for all such indemnification matters.
- Notice for California Users. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at California Department of Consumer Affairs, Consumer Information Center, 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 in order to resolve a complaint regarding the services or to receive further information regarding use of the service.
You may have the Terms mailed to you electronically by sending a letter to JOOKI, Inc., 701 Brazos St, Austin, TX 780, Attn: CEO, with your email address and including a written request for a copy of these Terms.
- System Outages. JOOKI and its third-party providers periodically schedule system downtime for the Services and the systems they are hosted on for maintenance and other purposes. Additionally, unplanned system outages may occur. You agree that JOOKI has no responsibility and is not liable for: (a) the unavailability of the Services or the Materials; (b) any loss of materials, data, transactions or any other information or materials caused by such system outages; (c) the resultant delay, mis-delivery, or non-delivery of data, transactions or any other information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation, any companies or servers hosting the Services or the Materials, any Internet service providers, any Internet facility or network, or any cellular providers or services.
In addition, the availability of the Services may be restricted or disturbed, from time to time, in the following cases: (i) disruption of your Internet connection or cellular network; (ii) service failure of your own device(s); (iii) failure to update to the current version of the Services; or (iv) due to a Force Majeure Event (a “Force Majeure Event means any cause or circumstance beyond the reasonable control of JOOKI, including, but not limited to, natural disasters, wars, civil unrest or social conflicts).
- Statute of Limitations. Any claim or cause of action arising out of or related to the Terms, use of the Services, your Account, and/or your Submissions or User Ideas (collectively, “Disputes”) must be filed within one year after such Dispute arose regardless of any statutes or law to the contrary. In the event any Dispute is not filed within such one-year period, such Dispute is forever barred.
- Choice of Law/Venue/Dispute Resolution. The Terms are governed by and construed in accordance with the laws of the State of New York, without regards to its principles of conflicts of law that would require the application of the laws of another jurisdiction. All Disputes between you and JOOKI shall be exclusively resolved by arbitration as set forth below.
MANDATORY ARBITRATION – YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN A COURT OF LAW BEFORE A JUDGE OR JURY.
JURY TRIAL WAIVER – EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY DISPUTE BE TRIED BY A JURY. YOU ACKNOWLEDGE THAT THIS JURY TRIAL WAIVER MAY DEPRIVE YOU OF AN IMPORTANT RIGHT AND YOU HAVE KNOWINGLY AND VOLUNTARILY AGREED TO WAIVE SUCH RIGHT.
Any Disputes involving a claim of less than $5,000 must be resolved exclusively through binding non-appearance-based arbitration. A party electing such arbitration shall initiate proceedings by filing an arbitration demand with the American Arbitration Association (AAA). The arbitration proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes (see www.adr.org for more information). In addition, you and JOOKI agree that the following rules shall apply to the arbitration proceedings: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Any Disputes involving a claim for more than $5,000 shall be submitted to final and binding arbitration pursuant to the substantive and procedural provisions of the Federal Arbitration Act (“FAA”). The arbitration shall be initiated and conducted according to the AAA Commercial Arbitration Rules (see www.adr.org for more information), except as modified herein. The arbitration shall be conducted in New York, NY before a single, neutral arbitrator appointed in accordance with the arbitration rules cited herein, and whose decision will be final, except for a limited right to appeal under the FAA. The arbitrator shall have the authority to hear and grant motions to dismiss and/or motions for summary judgement, and shall issue written opinions resolving such motions, if submitted. The arbitrator will provide a detailed written statement of the final decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following, appeal, if applicable) within thirty (30) days of such award being rendered, then the other party will have the right to enforce the final award in any court of competent jurisdiction in New York, NY. The party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including, without limitation, attorneys’ fees. The parties shall use reasonable efforts to maintain the confidential nature of the arbitration proceeding.
CLASS ACTION WAIVER – TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR DISPUTE UNDER THE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR DISPUTE, INCLUDING ANY ARBITRATION OR DISPUTE INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ACTION ARBITRATION PROCEEDINGS OR ANY PROCEEDINGS IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY SHALL BE PERMITTED. PROCEEDINGS TO RESOLVE, ARBITRATE OR LIGITATE (IF APPLICABLE) A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.
Class Certification Opt-Out. You have the right to opt-out and not be bound by the class, collective, and representative action waiver provisions set forth herein above by sending written notice of your decision to opt-out to the following address: JOOKI, Inc., 701 Brazos St, Austin, TX 78701, Attn: CEO. The notice must be sent within 30 days of your first view or access of or to the Services. Otherwise, you shall be bound by the above Class Action Waiver, in accordance with the terms herein.
If a court of competent jurisdiction finds these arbitration provisions invalid or inapplicable, you agree to the exclusive jurisdiction of the applicable Federal or State court located in New York, NY, and you agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable claim or action.
You explicitly agree that any claims or actions that you may otherwise have against JOOKI under the laws of any jurisdiction other than in New York, including anywhere else in or outside of the United States, are hereby waived, including without limitation, any claims or actions under the laws of your own state or country, and that your sole location and applicable law for any disputes is in New York, NY in the United States according to the terms of this Section 26.
- Mobile Terms. To use the Services on your mobile device, you must have a wireless mobile device with cellular or wireless service through a participating mobile service provider. You may be able to subscribe to receive, from time to time, SMS messages (text messages) from JOOKI. Any subscription SMS will include instructions for unsubscribing, which may vary depending on how you obtain access to the Services. You agree that are solely responsible for all message & data charges that you incur from your mobile service provider for your use of the Services. Please contact your mobile service provider for pricing and details.
If you are accessing the Services through an app on an Apple iOS device (an “iOS Application”), (a) JOOKI grants you a non-transferable license to use the iOS Application on any iPad, iPhone, Apple Watch, or iPod touch, as applicable, that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service, and (b) these Terms are expressly between you and JOOKI only, and not with Apple, and JOOKI, not Apple, is solely responsible for the iOS Application and the content thereof, (c) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application, (d) in the event of any failure of the iOS Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOS Application to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty (if any) will be JOOKI’s sole responsibility; (e) JOOKI, not Apple, is responsible for addressing any claims by you or any third party relating to the iOS Application or your possession and/or use of the iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (f) in the event of any third party claim that the iOS Application or your possession and use of the iOS Application infringes that third party’s intellectual property right, JOOKI not Apple, will be solely responsible for the investigation, defense, settlement and/or discharge of any such intellectual property infringement claim; and (g) if you use an iOS Application, then Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
If you are accessing the Services through an app on an Android device, Google may, at any time and without notice, restrict, interrupt, or prevent use of the Services, or delete the Services from your Android device(s), or require JOOKI to do any of the foregoing, without entitling you to any refund, credit, or other compensation from JOOKI or any third party (including, but not limited to, Google or your network connectivity provider). Further, (a) JOOKI, and not Google, is solely responsible for the Services made available on an Android device and the license granted herein; (b) Google has no obligation to provide maintenance and support for the Services made available on an Android device; (c) the Google Play marketplace is owned and operated by Google Inc., and your use of Google Play is governed by legal agreements between you and Google, not JOOKI; and (d) Google is not responsible for addressing, investigating, defending, settling, or discharging any claim brought by you or any third party for allegations relating to the Service made available on an Android device, or your possession and/or use of the Services on your Android device, including but not limited to: (i) consumer protection or similar legislation; (ii) any failure of the Services to comply with applicable legal or regulatory requirements; or (iii) infringement of third party intellectual property rights.
- Notices. All notices required or permitted to be given under the Terms must be in writing and shall be given by personal delivery, registered or certified mail, or Federal Express or other nationally recognized courier service which regularly tracks its packages, if to JOOKI to Jooki Inc, 701 Brazos St, Austin, TX 78701, Attn: CEO and if to you, to the email and/or postal address associated with your Account or which you have provided to JOOKI via anywhere in or on the Services, via telephone, or via email or regular mail. Notices, if personally delivered, shall be deemed to have been received on the date of delivery; if by registered or certified mail, on the third business day after mailing; if by Federal Express or email, on the second business day after deposit with the service. You may not send any notices under this Section to JOOKI via email.
- Questions. The Services are provided by JOOKI, Inc. If you have any questions, comments or complaints regarding the Terms, the Services or the Materials, please feel free to contact JOOKI at: Jooki Inc, 701 Brazos St, Austin, TX 78701, Attn: CEO or via email at firstname.lastname@example.org (with the subject line “Questions, Comments or Complaints”).
Updated: August 16, 2021