Last Modified: Nov 8th, 2019
You must agree to this ToU in order to use the Site and/or the Service. BY ACCESSING OR USING THE SITE OR SERVICE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND THAT YOU AGREE TO COMPLY WITH ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. In addition, you represent and warrant that you have reached the age of majority and have the legal capacity to enter into a contract in the jurisdiction where you reside. If you do not agree to be bound by this ToU, then you may not use any aspect of the Site or Service.
BY ACCEPTING THIS TOU, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. With limited exceptions, YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT and that all disputes between you and SonicSensory arising out of or relating to this ToU or any aspect of the Site or Service will be resolved by BINDING ARBITRATION. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please see Section 16 below entitled "Binding Arbitration" for more details regarding your obligation to resolve any disputes in arbitration.
1. TOU UPDATES
We may update this ToU from time to time and for any reason, and we will post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use any aspect of the Site or Service after the updated ToU has been posted. If you do not agree to any portion of the updated ToU, you must immediately stop using the Site and Service. We will seek to notify you of material changes to this ToU, such as by sending an email to your email address that we have on file (if any), displaying a notice on the Site, or by other means. Disputes arising under this ToU will be resolved in accordance with the version of the ToU in place at the time the dispute arose. We encourage you to review this ToU frequently to stay informed of the latest modifications.
2. MODIFICATIONS TO THE SITE AND SERVICE
You acknowledge and agree that we may discontinue, remove, or make changes to any aspect of the Site or Service at any time, with or without notice to you. We will not be liable to you or to any third party for any such suspension, removal, or change, and we do not guarantee that any part of the Site or Service will be available at any time, or for any period of time.
3. TERMINATION OF ACCESS
We reserve the right, in our sole and absolute discretion and without notice or liability to you or any third party, to immediately terminate, suspend, or restrict your use of the Site or Service at any time, for any reason or no reason, including, without limitation: (i) if we believe that you have violated this ToU, any Additional Terms, or any applicable law or regulation; (ii) at the request of law enforcement, government agencies, or courts; (iii) if we discontinue or materially modify the Site or Service (or any part thereof); (iv) if unexpected technical or security issues or problems arise; or (v) if we believe in our sole discretion that your access to or use of the Site or Service may create risk (including but not limited to legal risk) for us, or any of our affiliates, contractual partners, or users. If we terminate your access, you may be prevented (temporarily or permanently) from accessing the Site and Service, and we may delete any content and information associated with your use of the Site and Service. Any suspension or termination shall not affect your obligations to us under this ToU.
4. LICENSE AND USE RESTRICTIONS
4.1. Use of the Service
Subject to the terms and conditions of this ToU, we hereby grant you a limited, revocable, non-exclusive, personal, non-sublicensable, non-assignable license to access and use the Site and Service solely in accordance with this ToU and any Additional Terms (to the extent applicable). SonicSensory reserves all rights not expressly granted to you.
4.4. Accessing the Service
You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers), and you agree to comply with the instructions contained in any robots.txt file present on the Site or the Service.
4.5. No Violation of Laws
You agree that you will not, in connection with your use of the Site or Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Site or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
4.6. Use Restrictions
You may not access or use the Site or Service in any way that is not expressly permitted by this ToU. Without limiting the generality of the foregoing, you agree that you will not, and will not permit any third party to:
- remove any trademarks, copyright notices, proprietary notices or any other notice contained in any content, materials, or individual elements provided on or through the Site or from the Service;
- modify, reproduce, create derivative works of, translate, reverse engineer, decompile, or disassemble any portion of the Site or Service;
- circumvent, disable, or otherwise interfere with any encryption technology or security-related features of the Site or the Service;
- make any commercial use of, sell, assign, rent, lease, license, sublicense, time-share, act as a service bureau, or otherwise exploit any content, materials, or individual elements provided on or through the Site or Service without our prior written consent;
- make any false, misleading or deceptive statement or representation regarding SonicSensory or the Site or Service;
- institute, assist, or become involved in any type of attack, including, without limitation, denial of service attacks, upon the Site or Service (or any servers, systems or networks connected to the Site or Service) or otherwise attempt to obstruct, disrupt, or interfere with the normal operation of the Site or Service or any other person's or entity's use of thereof;
- attempt to gain unauthorized access to the Site, the Service, user information, or any servers, systems or networks connected to the Site or Service;
- use the Site or Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene, hateful or otherwise objectionable (as determined in our sole discretion);
- use the Site or Service to perform any unsolicited commercial communication not permitted by applicable law;
- use the Site or Service to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person's identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation or treaty; or
- use the Service for any other unlawful, prohibited, abnormal or unusual activity, as determined in our sole discretion.
You will cooperate with us to investigate any suspected or actual activity that we suspect may be in breach of this ToU.
4.7. No Data Mining or Harmful Code
In addition, you agree that you will not: (i) obtain or attempt to obtain any information from the Site or Service including, without limitation, personal information of other users or other usage data; (ii) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or Service, whether through the use of a network analyzer, packet sniffer or other device; or (iii) transmit, use, distribute, or upload any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other potentially harmful programs or other material or information in connection with your use of the Site or Service.
5.1. Links to the Site
If you link to the Site, you must adhere to the following linking policy: (i) the appearance, position and other aspects of any link to the Site may not be such as to damage or dilute the goodwill associated with SonicSensory or its licensors' names or trademarks; (ii) the appearance, position and other attributes of the link may not suggest or create the false impression that your organization or entity is sponsored by, affiliated with, or associated with SonicSensory; and (iii) when selected by a User, the link to the Site must display the Site on full-screen and not within a "frame" on the linking website. We reserve the right, at any time and in our sole discretion, to request that you remove from your website and/or social media accounts all links to the Site. Upon our request, you must immediately remove all links to the Site. Thereafter, your posting of any future links to the Site will require our express written permission.
5.2. Third-Party Links
The Site and Service may provide links to third-party websites, advertisements, or resources. Because we have no control over such sites, advertisements, or resources, we are not responsible for the availability of such external websites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such third-party sites or resources. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods, or services available on or through any such third-party website or resource.
6. INTELLECTUAL PROPERTY
You acknowledge and agree that the Site and Service are protected by U.S. and international copyright laws, and that SonicSensory or its licensors own all right, title and interest in and to the Site and Service, including, without limitation, the SonicSensory trademarks and all other intellectual property and proprietary rights therein. Except for the limited use rights granted to you in this ToU, you agree that you do not have and will not acquire any right, title, or interest in any of our intellectual property or other proprietary rights. Any rights not expressly granted in this ToU are expressly reserved.
You may choose to, or we may invite you to, submit comments, bug reports, ideas or other feedback about the Site and/or the Service ("Feedback") to email@example.com. By submitting Feedback, you agree that we are free to use such Feedback in our sole discretion without any compensation or other obligation to you. We may also choose to disclose Feedback to third parties. You hereby grant SonicSensory a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, non-exclusive license under all rights necessary to use, copy, modify, adapt, translate, publish, incorporate into the Site or Service (or our other products or services), create derivative works of, distribute, and otherwise exploit your Feedback for any purpose.
The Site and Service are operated by SonicSensory in the United States. If you choose to access the Site and Service from a location outside of the United States, you do so at your own risk and you are solely responsible for compliance with applicable local laws.
The Site and Service are not directed toward children under 13 years of age, and SonicSensory does not knowingly collect information from children under the age of 13 or allow them to have access to the Site or Service. If you are under the age of 13, please do not submit any personal information about yourself to SonicSensory.
11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SONICSENSORY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
SONICSENSORY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR SERVICE.
SONICSENSORY DOES NOT REPRESENT OR WARRANT THAT: (I) YOU WILL BE ABLE TO ACCESS OR USE THE SITE OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR SATISFACTION; (IV) ERRORS OR DEFECTS IN THE OPERATION OF THE SITE OR SERVICE WILL BE CORRECTED; OR (V) THE SITE OR SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, some of the foregoing disclaimers may not apply to you.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SONICSENSORY AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE " RELATED PARTIES") SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE OR SERVICE, EVEN IF SONICSENSORY OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SITE OR SERVICE.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE AGGREGATE LIABILITY OF SONICSENSORY OR ANY OF THE RELATED PARTIES IN CONNECTION WITH THIS TOU OR YOUR USE OF THE SITE AND SERVICE EXCEED TWENTY-FIVE DOLLARS ($25).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, some of the above provisions may not apply to you. In such states or jurisdictions, the liability of SonicSensory and the Related Parties shall be limited to the fullest extent permitted by law.
13. INDEMNIFICATION AND RELEASE
You agree to defend, indemnify and hold SonicSensory, the Related Parties, and their respective members, officers, directors, owners, employees, agents, successors, and assigns harmless from and against any and all claims, demands, liabilities, costs, expenses damages, and losses including, without limitation, reasonable attorneys' fees (collectively, “Claims”), resulting from or arising out of (i) your use of the Site or Service, or (ii) your breach of this ToU or any other policies that SonicSensory may issue for the Site or Service from time to time. We have the right to control the defense, settlement and/or other resolution of any Claims, at your sole cost and expense. You may not settle or otherwise resolve any Claim without our express written permission.
YOU HEREBY RELEASE SONICSENSORY AND THE RELATED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE AND/OR SERVICE. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE § 1542 WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
14. GOVERNING LAW; JURISDICTION
This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and SonicSensory agree that, except as otherwise provided in Section 15 below, the state and federal courts located in Los Angeles, CA will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, SonicSensory shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
15. BINDING ARBITRATION
15.1. Arbitration Procedures
You and SonicSensory agree that, except as provided in Section 15.4 below, all disputes, controversies and claims related to this ToU (each a "Dispute"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the " JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 15 and the JAMS Rules, the terms in this Section 15 will control and prevail.
Except as otherwise set forth in Section 15.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and SonicSensory will have the opportunity for discovery of non-privileged information that is relevant to the Dispute. The arbitrator will provide a written statement of the arbitrator's decision regarding the Dispute, the award given, and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU: (i) you and SonicSensory may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will take place in Los Angeles, CA, unless the parties agree to video, phone or internet connection appearances.
You and SonicSensory agree that any arbitration shall be limited to the Dispute between SonicSensory and you individually. YOU AND SONICSENSORY AGREE THAT (I) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (III) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION AND THE ARBITRATOR MAY AWARD RELIEF (INCLUDING INJUNCTIVE RELIEF) ONLY ON AN INDIVIDUAL BASIS. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
15.4. Exceptions to Arbitration
You and SonicSensory agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Dispute seeking to enforce or protect, or concerning the validity of, any of SonicSensory’s intellectual property rights; (ii) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Disputes that are within the scope of such court's jurisdiction in lieu of arbitration.
15.5. Arbitration Fees
If you initiate arbitration for a Dispute, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Dispute, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and SonicSensory agree that if any portion of this Section 15 is found illegal or unenforceable (except any portion of Section 15.4), that portion shall be severed, and the remainder of the section shall be given full force and effect. If Section 15.4 is found to be illegal or unenforceable then neither you nor SonicSensory will elect to arbitrate any Dispute falling within that portion of Section 15.4 found to be illegal or unenforceable and such Dispute shall be exclusively decided by a court of competent jurisdiction within Los Angeles, CA, United States of America, and you and SonicSensory agree to submit to the personal jurisdiction of that court.
This Section 15 shall survive any termination of your relationship with SonicSensory.
16.1. No Partnership
You agree that no joint venture, partnership, employment, or agency relationship exists between you and SonicSensory as a result of this ToU or your use of the Site or Service.
SonicSensory may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without SonicSensory's prior written consent, and any attempted unauthorized assignment by you shall be null and void.
If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
16.4. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site, the Service or this ToU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
16.5. No Waiver
Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by SonicSensory of any provision, condition, or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
16.6. Export Administration
You must comply with all export laws and regulations of the United States and any other country (" Export Controls"), and you shall not export, direct, or transfer any portion of the Site or Service, or any direct product thereof, to any destination, person, or entity restricted or prohibited by applicable Export Controls.
16.7. Equitable Remedies
You acknowledge and agree that SonicSensory would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
16.8. Entire Agreement
16.9. No Contest
Our electronically or otherwise properly stored copy of this ToU will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of this ToU in connection with any action or proceeding arising out of or relating to this ToU.