By using CANOPY ("Service"), you are agreeing to be bound by the following terms and conditions ("Terms of Service"). Eversong, LLC dba CANOPY ("Company") reserves the right to update and change these Terms of Service without notice. Violation of any of the terms below may result in the termination of your account.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, personal license to use the CANOPY service. CANOPY reserves all rights not expressly granted herein in the CANOPY service and the CANOPY Content (as defined below). CANOPY may terminate this license at any time for any reason or no reason.
To use the CANOPY Software you must have a mobile device that is compatible with the CANOPY service. CANOPY does not warrant that our service will be compatible with your mobile device.
CANOPY hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the CANOPY Software for one CANOPY Member account on one mobile device owned or leased solely by you, for your personal use.
You may not: (i) modify, disassemble, decompile or reverse engineer the CANOPY Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense,distribute or otherwise transfer the CANOPY Software to any third party or use the CANOPY Software to provide time sharing or similar CANOPY services for any third party; (iii) make any copies of the CANOPY Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the CANOPY Software, features that prevent or restrict use or copying of any content accessible through the CANOPY Software, or features that enforce limitations on use of the CANOPY Software; or (v) delete the copyright and other proprietary rights notices on the CANOPY Software.
You acknowledge that CANOPY may from time to time issue upgraded versions of the CANOPY Software, and may automatically electronically upgrade the version of the CANOPY Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
Any third-party code that may be incorporated in the CANOPY Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
The foregoing license grant under this Agreement is not a sale of the CANOPY Software or any copy thereof and CANOPY or its third party partners or suppliers retain all right, title, and interest in the CANOPY Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. CANOPY reserves all rights not expressly granted under this Agreement.
If the CANOPY Software is being acquired on behalf of the United States Government, then the following provision applies: Use, duplication, or disclosure of the CANOPY Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Export Control. The CANOPY Software originates in the United States, and is subject to United States export laws and regulations. The CANOPY Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the CANOPY Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the CANOPY Software and the CANOPY service.
The following applies to any CANOPY Software you acquire from the iTunes Store ("iTunes-Sourced Software"): You acknowledge and agree that this Agreement is solely between you and CANOPY, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to CANOPY as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to CANOPY as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party's intellectual property rights, CANOPY, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and CANOPY acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Except for your User Content, all right, title, and interest in and to the CANOPY service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, CANOPY service marks, copyrights, photographs, audio, videos, music, and User Content (the "CANOPY Content") are and will remain the exclusive property of CANOPY and its licensors. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the CANOPY service. Use of the CANOPY Content or materials on the CANOPY service for any purpose not expressly permitted by this Agreement is strictly prohibited. Any feedback, comments, or suggestions you may provide regarding CANOPY or the CANOPY services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
Billing Policies. Certain aspects of the CANOPY service may be provided for a fee or other charge. If you elect to use paid aspects of the CANOPY service, you agree to the pricing, payment and billing policies applicable to such fees and charges. CANOPY may add new CANOPY services for additional fees and charges, or amend fees and charges for existing CANOPY services, at any time in its sole discretion.
Certain aspects of the CANOPY service may allow you to purchase fictional currency ("CANOPY Currency, Credits, or Points") for deposit in a fictional financial account ("Funding Account"). A Funding Account is not a bank deposit and you will not receive any interest on fictional funds in your Funding Account. You acknowledge that you do not own the account you use to access the CANOPY service, nor do you possess any rights of access or rights to data stored by or on behalf of CANOPY on CANOPY servers (including without limitation any data representing or embodying any or all of your Currency or other fictional property). All data on CANOPY's servers are subject to deletion, alteration or transfer.
You understand and agree that regardless of terminology used, CANOPY Currency constitutes a limited license right to use a feature of our product when, as, and if allowed by CANOPY. CANOPY Currency is not redeemable for any sum of money or monetary value from CANOPY at any time. You agree that CANOPY has the absolute right to manage, regulate, control, modify and/or eliminate such CANOPY Currency as it sees fit in its sole discretion, in any general or specific case, and that CANOPY will have no liability to you based on its exercise of such right.
When using the CANOPY service, you may accumulate fictional property related to the CANOPY service that resides as data on CANOPY's servers. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY,YOU UNDERSTAND AND AGREE THAT THESE DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON CANOPY'S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN CANOPY'S SOLE DISCRETION. CANOPY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY SUCH DATA RESIDING ON CANOPY'S SERVERS.
You may cancel your CANOPY Account and/or Funding Account at any time; however, there are no refunds for cancellation. As permitted under the terms of this Agreement, CANOPY has the right at any time for any reason or no reason to suspend or terminate your Account and/or Funding Account, terminate this Agreement, and/or refuse any and all current or future use of the CANOPY service without notice, refund, obligation, or liability to you.
In the event that CANOPY suspends or terminates your CANOPY Account, Funding Account, or this Agreement, you understand and agree that you shall receive no refund or exchange for any CANOPY Currency, any unused time on a subscription, any license or subscription fees for any portion of the CANOPY service, any content or data associated with your CANOPY Account, or for anything else.
We have implemented commercially reasonable technical and organizational measures designed to implement your privacy settings and secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
In connection with your User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, that:
(a) you are at least 18 years of age, an emancipated minor, or have the consent of your parent or legal guardian, AND are fully able and competent to enter into this Agreement and to abide by and comply with its terms;
(b) you have the written consent of each and every identifiable natural person in the User Content to use such person's name or likeness in the manner contemplated by the CANOPY service and this Agreement, and each such person has released you from any liability that may arise in relation to such use;
(c) your User Content and CANOPY's use thereof as contemplated by this Agreement and the CANOPY service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity; and
(d) CANOPY may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
You agree to defend, indemnify and hold harmless CANOPY and its subsidiaries, agents, managers, partners (including, without limitation, its wireless carrier partners), and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
(i) your use of and access to the CANOPY service, including any data or content transmitted or received by you;
(ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
(iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;
(iv) your violation of any law, rule or regulation of the United States or any other country;
(v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account;
(vi) any other party's access and use of the CANOPY service with your unique username, password or other appropriate security code; or
(vii) your use of the CANOPY service to meet another User in-person or to locate and/or visit any offline place or event.
THE CANOPY SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, CANOPY, ITS PARTNERS AND LICENSORS DISCLAIM ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE CANOPY SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE CANOPY SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CANOPY SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CANOPY SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CANOPY, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS OR PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM:
(A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION;
(B) YOUR USE OR INABILITY TO USE THE CANOPY SERVICE;
(C) THE CANOPY SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE CANOPY SERVICE AVAILABLE; OR
(D) ANY OTHER INTERACTIONS WITH CANOPY OR ANY OTHER USER OF THE CANOPY SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT CANOPY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you. The CANOPY service is controlled and operated from its facilities in the United States. CANOPY makes no representations that the CANOPY service is appropriate or available for use in other locations. Those who access or use the CANOPY service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant that:
(i) 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
(ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Unless otherwise explicitly stated, all materials found on the CANOPY service are solely directed to individuals, companies, or other entities located in the United States.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by CANOPY without restriction.
Governing Law. You agree that:
(i) the CANOPY service shall be deemed solely based in New York; and
(ii) the CANOPY service shall be deemed a passive one that does not give rise to personal jurisdiction over CANOPY, either specific or general, in jurisdictions other than New York.
This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and CANOPY that arises in whole or in part from the CANOPY service shall be decided exclusively by a court of competent jurisdiction located in New York County, New York, unless submitted to arbitration as set forth in the following paragraph.
For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration.
The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties.
The ADR provider and the parties must comply with the following rules:
(a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration;
(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.
CANOPY may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by CANOPY in our sole discretion. CANOPY reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
This Agreement, together with any amendments and other legal terms referenced in the Agreement, shall constitute the entire agreement between you and CANOPY concerning the CANOPY service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and CANOPY's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
You continue to be bound by this Agreement after termination of your account. Please contact us with any questions regarding this Agreement. Communicating with us by electronic mail will allow us to respond more quickly than will communications sent through ordinary mail.