RedOne Exclusives

Terms of Service

This Terms of Service Agreement (this “Terms of Service Agreement”) is an agreement between you (the “User”) and Supercoil, Inc. (“Supercoil”, “we”, or “us”).

Your agreement with us includes this Terms of Service Agreement and our Privacy Policy.  (The Terms of Service Agreement, Privacy Policy, and any other legal notices, conditions or guidelines posted on the Site (as defined below) or otherwise made available or furnished through the Service are referred to together as the “Agreements”.)  If you wish to review the terms of the Agreements, the effective version of the Agreements can be found at http://www.supercoil.tech (including any subdomains thereof, the “Site”).  By signing up or otherwise using the Supercoil service, the Site, and software applications (together, the “Supercoil Service” or “Service”), or accessing any content or material that is made available by Supercoil through the Service (the “Content”) you are entering into a binding contract with us and are agreeing to comply with the Agreements.

You acknowledge that you have read and understood the Agreements, accept the Agreements, and agree to be bound by them.  If you don’t agree with (or cannot comply with) the Agreements, then you may not use the Supercoil Service or consume any Content.

1.    Introduction.  In order to use the Supercoil Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in a country where the Service is available.  You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Terms of Service Agreement, and to abide by and comply with Terms of Service Agreement.  You also promise that any registration information that you submit to Supercoil is true, accurate, and complete, and you agree to keep it that way at all times.

2.    Changes to the Agreements.  Occasionally we may, in our discretion, make changes to the Agreements.  When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email.  In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes.  Please therefore make sure you read any such notice carefully.  If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through the Technical Support Contact Form.

3.    Enjoying Supercoil.  Here is some information about all the ways you can enjoy Supercoil.

(a)          Our Services & Paid Subscriptions.  [Supercoil provides access to Channels of Content created by our Clients].[1]  Certain Supercoil services are provided to you free-of-charge.  Other Supercoil services require payment before you can access them.  The Supercoil services that may be accessed after payment are currently referred to as the “Premium Service” and the “Unlimited Service” (together, the “Paid Subscriptions”).  The Supercoil service that does not require payment is currently referred to as the “Free Service”.  You can learn more about our services by visiting our website.  The Unlimited Service may not be available to all users.  We will explain which services are available to you when you are signing up for the services.  If you cancel your subscription to the Unlimited Service, or if your subscription to the Unlimited Service is interrupted (for example, if you change your payment details), you may not be able to re-subscribe for the Unlimited Service.  Note that the Unlimited Service may be discontinued in the future, in which case you will no longer be charged for the Service.]

(b)          Codes and other pre-paid offers.  If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of Supercoil for access to a Paid Subscription (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.

(c)          Trials.  From time to time, we or others on our behalf may offer trials of Paid Subscriptions for a specified period without payment or at a reduced rate (a “Trial”).  Supercoil reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

For some Trials, we will require you to provide your payment details to start the Trial.  AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS.  BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS.  IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR SUPERCOIL ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR SUPERCOIL ACCOUNT BEFORE THE END OF THE TRIAL.  IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR SUPERCOIL ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR SUPERCOIL ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD.  PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SUPERCOIL WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.  THE LIMITATION SECTION SETS FORTH ADDITIONAL TERMS REGARDING CANCELLATION OF YOUR PAID SUBSCRIPTION.

4.    Rights We Grant You.  The Supercoil Service and the Content are the property of Supercoil or Supercoils licensors.  We grant you a limited, non-exclusive, revocable license to make use of the Supercoil Service, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content (the “License”).  This License shall remain in effect until and unless terminated by you or Supercoil.  You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the Supercoil Service or the Content.

The Supercoil software applications and the Content are licensed, not sold, to you, and Supercoil and its licensors retain ownership of all copies of the Supercoil software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).

All of them Supercoil trademarks, service marks, trade names, logos, domain names, and any other features of the Supercoil brand (“Supercoil Brand Features”) are the sole property of Supercoil or its licensors.  The Agreements do not grant you any rights to use any Supercoil Brand Features whether for commercial or non-commercial use.

You agree to abide by the user guidelines set forth in Section 8 and not to use the Supercoil Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements.  Except for the rights expressly granted to you in the Agreements, Supercoil grants no right, title, or interest to you in the Supercoil Service or Content.

Third party software (for example, open source software libraries) included in the Supercoil Service are licensed to you either under the Agreements or under the relevant third party software library’s license terms as published in the [Help or Settings section of our Site or the Supercoil App (the “App”)].[2]

5.    Third Party Applications.  The Supercoil Service is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you.  These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies.  You understand and agree that Supercoil does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.

6.    User-Generated Content.  Supercoil users may post, upload, and/or contribute (“post”) content to the Service (which may include, for example, pictures, text, messages, information, playlist compilations, and/or other types of content) (“User Content”).  For the avoidance of doubt, “User Content” includes any such content posted to the [Supercoil Support

You promise that, with respect to any User Content you post on Supercoil, (1) you have the right to post such User Content, and (2) such User Content, or its use by Supercoil as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Supercoil or any artist, band, label, entity or individual without express written consent from such individual or entity.

Supercoil may, but has no obligation to, monitor, review, or edit User Content.  In all cases, Supercoil reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in Supercoil’ sole discretion, violates the Agreements.  Supercoil may take these actions without prior notification to you or any third party.  Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.

You are solely responsible for all User Content that you post.  Supercoil is not responsible for User Content nor does it endorse any opinion contained in any User Content.  YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST SUPERCOIL RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD SUPERCOIL HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS, AND INCLUDING ATTORNEYS FEES AND COSTS INCURRED IN CONNECTION WITH ENFORCING THIS INDEMNIFICATION) ARISING OUT OF SUCH CLAIM.

7.    Rights You Grant Us.  In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the Supercoil Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same.  In any part of the Supercoil Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties.  Some Content licensed or provided to Supercoil may contain advertising as part of the Content.  In such cases, Supercoil will make such Content available to you unmodified.

If you provide feedback, ideas or suggestions to Supercoil in connection with the Supercoil Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Supercoil to use that Feedback without restriction and without payment to you.  Feedback is considered a type of User Content.

You grant Supercoil a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content.  Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.

8.    User Guidelines.  Supercoil respects intellectual property rights and expects you to do the same.  We’ve established a few ground rules for you to follow when using the Service, to make sure Supercoil stays enjoyable for everyone.  Please follow these rules and encourage other users to do the same.  The following is not permitted for any reason whatsoever:

(a)          copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Supercoil Service or the Content, or otherwise making any use of the Supercoil Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Supercoil Service or the Content or any part of it;

(b)          using the Supercoil Service to import or copy any local files you do not have the legal right to import or copy in this way;

(c)          transferring copies of cached Content from an authorized Device to any other Device via any means;

(d)          reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Supercoil Service, Content or any part thereof unless permitted by applicable law;

(e)          circumventing any technology used by Supercoil, its licensors, or any third party to protect the Content or the Service;

(f)           selling, renting, sublicensing or leasing of any part of the Supercoil Service or the Content;

(g)          circumventing any territorial restrictions applied by Supercoil or it licensors;

(h)          artificially increasing, affecting or modifying play count, consumption data or otherwise manipulating the Services by using a script or other automated process;

(i)            removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Supercoil Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);

(j)            providing your password to any other person or using any other person’s username and password;

(k)          “crawling” the Supercoil Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Supercoil; or

(l)            selling a user account or playlist, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.

Please respect Supercoil, the owners of the Content, and other users of the Supercoil Service.  Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:

(a)          is offensive, abusive, racist, defamatory, pornographic, threatening, or obscene;

(b)          is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Supercoil or a third party;

(c)          includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;

(d)          includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;

(e)          is intended to or does harass or bully other users;

(f)           impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;

(g)          uses automated means to artificially promote content;

(h)          involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar items;

(i)            involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Supercoil;

(j)            links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Supercoil;

(k)          interferes with or in any way disrupts the Supercoil Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or Supercoil’s computer systems, network, usage rules, or any of Supercoil’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or

(l)            conflicts with the Agreements, as determined by Supercoil.

You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your Supercoil account.  You also agree that Supercoil may also reclaim your username for any reason.

Please be thoughtful about how you use the Supercoil Service and what you share.  The Supercoil Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public.  Remember that shared or publicly available information may be used and re-shared by other users on Supercoil or across the web, so please use Supercoil carefully and be mindful of your account settings.  Supercoil has no responsibility for your choices to post material on the Service.

Your password protects your user account, and you are solely responsible for keeping your password confidential and secure.  You understand that you are responsible for all use of your username and password on the Service.  If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.

9.    Infringement and Reporting User Content.  Supercoil respects the rights of intellectual property owners.  If you believe that any Content infringes your intellectual property rights or other rights, see Supercoil’s Copyright Policy.  If Supercoil is notified by a copyright holder that any Content infringes a copyright, Supercoil may in its absolute discretion take actions without prior notification to the provider of that Content.  If the provider believes that the content is not infringing, the provider may submit a counter-notification to Supercoil with a request to restore the removed content.

10. Service Limitations and Modifications.  Supercoil will make reasonable efforts to keep the Supercoil Service operational.  However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions.  To the extent permissible under applicable law, Supercoil reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Supercoil Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Supercoil Service or any function or feature thereof.  Notwithstanding the foregoing, if you have prepaid fees for Paid Subscriptions that Supercoil permanently discontinues prior to the end of the Pre-Paid Period (defined in the Payments, cancellations, and cooling off section), Supercoil will refund you the prepaid fees for the Pre-Paid Period after such discontinuation.  You understand, agree, and accept that Supercoil has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service.  This section will be enforced to the extent permissible by applicable law.  Supercoil and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.

11. Brand Accounts.  If you establish a Supercoil account on behalf of a company, organization, entity, or brand (a “Brand”, and such account a “Brand Account”), the terms “you” and “your”, as used throughout the Agreements, apply to both you and the Brand, as applicable.

If you open a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in the Agreements and to bind the Brand to the Agreements.

(a)          Following.  The Brand may only follow users who first follow the Brand; and the Brand may not take any action that implies an endorsement or relationship between the Brand and the followed user, unless the Brand has independently obtained the rights to imply such an endorsement.  Upon Suercoil’s request, in its sole discretion, a Brand must cease following a user.

(b)          Messaging.  The Brand may only send messages to users who first send messages to the Brand.

12. Customer support.  For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit a ticket to our customer service department using the Technical Support Contact Form. We will use commercially reasonable efforts to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.

13. Payments, cancellations, and cooling off.  Paid Subscriptions can be purchased either by paying a monthly subscription fee.

When you register for a Paid Subscription, Trial, or Code online, you consent to get access to Supercoil Premium immediately.

Unless your Paid Subscription has been purchased as a Pre-Paid Period, your payment to Supercoil (or to a third party through whom you purchased the Paid Subscription, such as a telephone company) will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription through your mobile device’s subscription management settings before the end of the current subscription period. The cancellation will take effect according to the store policy in place for your device.

If you wish to receive a full refund of all monies paid before the Cooling-off Period is over, you must contact Customer Support using the Technical Support Contact Form.

Supercoil may change the price for the Paid Subscriptions, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes.  Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change.  As permitted by local law, you accept the new price by continuing to use the Supercoil Service after the price change takes effect.  If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Supercoil Service prior to the price change going into effect.  Please therefore make sure you read any such notification of price changes carefully.

14. Term and Termination.  The Agreements will continue to apply to you until terminated by either you or Supercoil.  However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiration or termination of any of the Agreements for any reason.  Supercoil may terminate the Agreements or suspend your access to the Supercoil Service at any time, including in the event of your actual or suspected unauthorized use of the Supercoil Service and/or Content, or non-compliance with the Agreements.  If you or Supercoil terminate the Agreements, or if Supercoil suspends your access to the Supercoil Service, you agree that Supercoil shall have no liability or responsibility to you and Supercoil will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.  To learn how to terminate your Supercoil account, please contact us through the Technical Support Contact Form].  This section will be enforced to the extent permissible by applicable law.  You may terminate the Agreements at any time.

Sections 6, 7,8, 10, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24 and 25 herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.

15. Warranty and Disclaimer.  WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE SUPERCOIL SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND.  YOU USE THE SUPERCOIL SERVICE AT YOUR OWN RISK.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUPERCOIL AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  NEITHER SUPERCOIL NOR ANY OWNER OF CONTENT WARRANTS THAT THE SUPERCOIL SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS.  IN ADDITION, SUPERCOIL MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SUPERCOIL SERVICE OR ANY HYPERLINKED WEBSITE OR OTHER SOFTWARE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING.  YOU UNDERSTAND AND AGREE THAT SUPERCOIL IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SUPERCOIL SERVICE.  AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.  NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM SUPERCOIL SHALL CREATE ANY WARRANTY ON BEHALF OF SUPERCOIL IN THIS REGARD.  SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.

The Service is controlled and offered by SUPERCOIL from its facilities in the United States of America. SUPERCOIL makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.

16. Limitation.  YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SUPERCOIL SERVICE IS TO UNINSTALL ANY SUPERCOIL SOFTWARE AND TO STOP USING THE SUPERCOIL SERVICE.  WHILE SUPERCOIL ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO SUPERCOIL, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SUPERCOIL, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR: (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE SUPERCOIL SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SUPERCOIL HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SUPERCOIL SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO SUPERCOIL DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.

Nothing in the Agreements removes or limits Supercoil’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.  Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.

17. Third Party Rights.  You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you.  Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Supercoil, and in no event shall the Agreements create any third party beneficiary rights.  Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple.  This Agreement is between you and Supercoil only, not with Apple, and Apple is not responsible for the Service and the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the Service.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.  You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

18. Entire Agreement.  Other than as stated in this section or as explicitly agreed upon in writing between you and Supercoil, the Agreements constitute all the terms and conditions agreed upon between you and Supercoil and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.

Please note, however, that other aspects of your use of the Supercoil Service may be governed by additional agreements.  That could include, for example, access to the Supercoil Service as a result of a gift card or free or discounted Trials.  When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms.  Some of those additional terms are [listed on Supercoil’s website].  To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.

19. Severability and Waiver.  Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.

Any failure by Supercoil or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive Supercoil’s or the applicable third party beneficiary’s right to do so.

20. Assignment.  Supercoil may assign the Agreements or any part of them, and Supercoil may delegate any of its obligations under the Agreements.  You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.

21. Indemnification.  To the fullest extent permitted by applicable law, you agree to indemnify and hold Supercoil harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Supercoil Service; and (4) your violation of any law or the rights of a third party.

22. Choice of Law; Consent to Jurisdiction and Venue.

(a)          Choice of Law.  You agree that: (i) the Service shall be deemed solely based in Texas; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over Supercoil, either specific or general, in jurisdictions other than Texas. Unless otherwise required by a mandatory law, the Agreements (and any non-contractual disputes/claims arising out of or in connection with them) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.

(b)          Consent to Jurisdiction.  To the extent permitted by applicable law, you hereby absolutely and irrevocably consents and submit to the jurisdiction of the courts of the Travis County and State of Texas and of any Federal Court located in said jurisdiction in connection with any actions or proceedings brought against it by any other party arising out of or relating to the Agreements and hereby irrevocably agrees that all claims in respect of any such action or proceeding may be heard and determined in any such court.

23. Mandatory Arbitration.  If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 24 is enforceable, the following mandatory arbitration provisions apply to you:

(a)          Dispute resolution and Arbitration.  You and Supercoil agree that any dispute, claim, or controversy between you and Supercoil arising in connection with or relating in any way to these Agreements or to your relationship with Supercoil as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual arbitration.  Arbitration is more informal than a lawsuit in court.  THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.  There may be more limited discovery than in court.  The arbitrator must follow this Terms of Service Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration.  This arbitration provision will survive termination of the Agreements.

(b)          Exceptions.  Notwithstanding clause 24(a) above, you and Supercoil both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (i) bring an individual action in a U.S. small claims court, (ii) pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

(c)          Arbitration Rules.

(i)            Either you or we may start arbitration proceedings.  If you are located in, are based in, have offices in, or do business in the United States, any arbitration between you and Supercoil will be finally settled under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by the Agreements.  You and Supercoil agree that these Agreements affect interstate commerce, so the U.S. Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of this provision (despite the choice of law provision above).  The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.  Supercoil can also help put you in touch with the AAA.

(ii)          Any arbitration hearings will take place at a location to be agreed upon in Austin, Texas; provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.

(iii)         Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA’s Consumer Rules with the remainder paid by Supercoil.  If the arbitrator finds that either the substance of your claim or the relief sought in the Demand (as defined below) is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules.  In such case, you agree to reimburse Supercoil for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(iv)         If you are not located in, are not based in, do not have offices in, and do not do business in the United States, any arbitration between you and Supercoil will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules, as modified by the Agreements, and will be administered by the International Court of Arbitration of the ICC.

(v)          Any arbitration will be conducted in the English language and unless otherwise required by a mandatory law of other jurisdiction, the law to be applied in any arbitration shall be the law of the State of Texas, United States, without regard to choice or conflicts of law principles.

(vi)         Time for Filing.  Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period.  If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

(vii)        Notice; Process.  A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”).  Supercoil’s address for Notice is: 13809 Research Boulevard, B-400, Austin, TX, 78750, Attn: General Counsel.  The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”).  We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Supercoil may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by you or Supercoil shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.  In the event our dispute is finally resolved through arbitration in your favor, Supercoil shall pay you (1) the amount awarded by the arbitrator, if any, (2) the last written settlement amount offered by Supercoil in settlement of the dispute prior to the arbitrator’s award; or (3) $1,000.00, whichever is greater.  All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.  Except as required to enforce the arbitrator’s decision and award, neither you nor Supercoil shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.

(viii)      Modifications.  In the event that Supercoil makes any future change to this arbitration provision (other than a change to Supercoil’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Supercoil’s address for Notice, in which case your account with Supercoil shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.

(ix)         Enforceability.  If the class action waiver at Section 25 is found to be unenforceable in arbitration or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24(c) shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 23 shall govern any action arising out of or related to the Agreements.

24. CLASS ACTION WAIVER.  WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND SUPERCOIL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.  Unless both you and Supercoil agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

25. CLAIM BAR.  YOU AND SUPERCOIL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

26. Contact Us.  If you have any questions concerning the Supercoil Service or the Agreements, please contact Supercoil customer service by visiting the About Us section of our website.  If you are a California resident, you may have the Agreements mailed to you electronically by sending a letter to Supercoil, 13809 Research Boulevard, B-400, Austin, TX, 78750, Attn: General Counsel with your email address and a request for the Agreements.  In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.

Thank you for reading our Terms.  We hope you enjoy Supercoil!

 

(Last updated: January 1, 2017)