Last Updated: April 10, 2012
2. THIRD PARTY CONDUCT. By using The Hark Website, you may be exposed to Content (defined below in Use of the Website) that is offensive, indecent or objectionable. There are also risks inherent in posting "Personally Identifiable Information" (e.g. name, address, phone, number or e-mail address) and you do so at your own risk.
3. AGE RESTRICTION. The Hark Website is not intended for children under 13. If you are between 13 and 17, you may, with you parent or legal guardian’s consent, use our website, provided your parent or legal guardian assumes all responsibility and legal liability for the conduct of your actions. Hark may suspend or permanently disable your access to The Hark Website for failure to comply with this section.
4. USE OF THE WEBSITE. Except all User Submissions (defined below), the content on the Hark Website including without limitation, the text, software, scripts, graphics, photos, sounds, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Hark ("Hark Content") and subject to copyright and other intellectual property rights under the law. As a Hark account holder you may submit audio content and text content (collectively "User Submissions"). Content on the Website is provided to you "as is" for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Hark reserves all rights not expressly granted in and to the Website and the Content.
You understand that when using the Hark Website, you will be exposed to User Submissions from a variety of sources, and that Hark is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions.
5. USE RESTRICTIONS. You may not use the Hark Website to:
6. FURTHER RESTRICTIONS ON COMMERCIAL USE. You agree not to use the Website, including the Hark Embeddable Player, for any commercial use without the prior written authorization of Hark. Prohibited commercial uses include any of the following actions taken without Hark's express written approval:
Prohibited commercial uses do not include:
If you use the Hark Embeddable Player on your website, you must include a prominent link back to the Hark website on the pages containing the Embeddable Player and any other links embedded with the Embeddable Player and you may not modify, build upon or block any portion of the Embeddable Player in any way.
7. USER SUBMISSIONS AND CONDUCT. You may access User Submissions solely:
"Streaming" means a contemporaneous digital transmission of an audio work via the Internet from the Hark Website to a user's device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded or redistributed by the user. Accessing User Submissions for any purpose or in any manner other than Streaming is expressly prohibited. User Audio is made available "as is."
You understand that whether or not such User Submissions are published, Hark does not guarantee any confidentiality with respect to any User Submissions. You may access User Submissions and other Content only as permitted under this Agreement.
8. USER REPRESENTIATIONS. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Hark to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these TOU.
9. USER LICENSE TO HARK. By submitting User Submissions to Hark, you hereby grant Hark a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Hark Website and Hark's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Hark Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Hark Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these TOU. Hark’s licenses to User Submissions will terminate within a commercially reasonable time after you remove or delete your User Submissions from the Hark Website. You understand and agree, however, that Hark may retain server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.
10. NOT AN ENDORSEMENT. Hark, its subsidiaries, affiliates, officers, agents, employees, partners and licensors (collectively, the "Hark Entities"), do not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Hark expressly disclaims any and all liability in connection with User Submissions. Hark does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Hark will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Hark reserves the right to remove Content and User Submissions without prior notice.
11. MOBILE SERVICE. The Hark Website may be accessible via a mobile device. Hark does not charge a fee for this, but your mobile device carrier fees may still apply. Further, downloading, installing or using certain portions of the Hark Website may be prohibited or restricted by your mobile device carrier and not all features may function properly with all carriers, devices or software. Hark recommends you check with your mobile device carrier to find out what restrictions, if any, may be applicable to your mobile service.
12. LINKS. The Hark Website may contain links to other websites. Hark does not monitor or check the accuracy of such third party materials and accordingly, Hark has no control over such third party sites and resources. Hark is: (a) not responsible for the availability of such external sites or resources; and (b) does not endorse and is not responsible or liable for any advertising, products or other materials on or available from such third parties. If you elect to access a third party link, you do so at your own risk. You should review any terms and conditions and privacy polices prior to navigating to such third party site from the Service.
13. ADVERTISERS. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Hark Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Hark is not be responsible or liable for any loss or damage incurred by you.
14. CONTRIBUTIONS TO HARK. Hark does not accept unsolicited feedback, ideas, documents, suggestions or other information ("Contributions") about our products and services. Hark shall be free to use any Contributions provided by you for any purpose, such as improving our products and services and creating derivative technologies based upon such Contributions without compensation to you. All Contributions are provided voluntarily and free of any third party rights or encumbrances.
15. MODIFICATIONS TO THE HARK WEBSITE. Hark reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Hark shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Hark Website.
16. TERMINATION. Hark may terminate or suspend your access to the Hark Website for violating this TOU.
17. DIGITAL MILLENIUM COPYRIGHT ACT. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent (defined below) with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Hark's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, 1620 Broadway, Suite 209 Seattle, WA 98104, email: email@example.com, fax: 206-331-3984. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
If you believe that your User Submission was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent or pursuant to the law to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Hark may send a copy of the counter-notice to the original complaining party informing that person that he or she may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Hark's sole discretion.
19. MEMBER DISPUTES. You are solely responsible for your interactions with other users of the Hark Website. Hark reserves the right, but has no obligation, to monitor disputes between you and other users.
20. INDEMNITY. You represent and warrant that you have full authority to enter into and accept this TOU and grant the rights and licenses herein. With respect to Content and User Submissions, you represent and warrant that no Content or User Submissions submitted or otherwise uploaded, posted, transmitted, or shared by you on or through the Hark Website will violate or infringe the intellectual property rights of any third party. You shall defend, indemnify and hold the Hark Entities harmless against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with your breach of the warranties set forth herein.
21. DISCLAIMER OF WARRANTIES. YOUR USE OF THE HARK WEBSITE IS AT YOUR SOLE RISK. THE HARK ENTITIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE SERVICE OR THAT THE SERVICE SHALL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE HARK WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE HARK WEBSITE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND HARK IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND HARK’S REASONABLE CONTROL.
FURTHER, THE HARK ENTITIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE IN REGARDS TO ANY PRODUCTS, SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED, DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE SERVICE FROM A THIRD PARTY. THIS INCLUDES ANY APPLICATION, CONTENT, OR LINK PROVIDED BY A THIRD PARTY. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
22. Limitation of Liability. IN NO EVENT SHALL HARK, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY; AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE HARK WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOUR EXCLUSIVE REMEDY AND HARK’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS TOU FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO ONE HUNDRED U.S. DOLLARS ($100.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON INCLUDING, WITHOUT LIMITATION, PERSONAL HARM.
YOU SPECIFICALLY ACKNOWLEDGE THAT HARK SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS MAY NOT APPLY TO YOU.
23. MEDICAL WARNING. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
24. CHOICE OF LAW. You agree that: (a) the Hark Website shall be deemed solely based in Washington; and (b) the Hark Website shall be deemed a passive website that does not give rise to personal jurisdiction over Hark, either specific or general, in jurisdictions other than Washington. These TOU shall be governed by the internal substantive laws of the State of Washington, without respect to its conflict of laws principles. Any claim or dispute between you and Hark that arises in whole or in part from the Hark Website shall be decided exclusively by a court of competent jurisdiction located in Seattle, Washington. YOU AND HARK AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE HARK WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
25. ASSIGNMENT. These TOU, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Hark without restriction.
27. VIOLATIONS. Please report any violations of our TOU to firstname.lastname@example.org.
28. CONTACTING HARK. If you have any questions regarding this TOU or Hark, please feel free to contact us at:
Entertonement, Inc. (d/b/a Hark)
1620 Broadway, Suite 209
Seattle, WA 98104,