2.4 Your continued use of the Hrtbeat Sites after a modification signifies your agreement to the modification.
3. Use of Content.
3.1 All content contained on our Services, such as text, graphics, images, audio, video and any other material, as well as the domain names, tagline, organization and user look-and-feel (collectively, the “Content”), is protected by copyright, trademark and other intellectual property laws in the United States and foreign countries, and is owned or controlled by Hrtbeat or by third parties that have licensed their Content to Hrtbeat. Unauthorized use of the Content may lead to the violation of copyright, trademark, and other intellectual property laws.
3.2 Where our Services are configured to enable the download of any particular Content, you may download one copy of such Content to your device (computer, phone, laptop, etc) for your personal, noncommercial home use only, provided that (a) you retain all copyright and other proprietary notices contained in the original Content, (b) you may not sell or modify the Content or reproduce, display, publicly perform, distribute, or otherwise use the Content in any way for any public or commercial purpose without the prior written permission of Hrtbeat, and (c) you may not use the Content in a manner that suggests an association with any of our products, services or brands.
3.4 In the event that we offer downloads of software from our Services and you download such software, such software, including without limitation any files, text, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) is licensed to you by us or third-party licensors for your personal, noncommercial home use only. In no event shall title of the Software transfer to you. You may not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form.
3.5 UNLESS OTHERWISE SPECIFICALLY AND EXPRESSLY STATED ELSEWHERE, HRTBEAT HEREBY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED OR STATUTORY.
3.6 HRTBEAT SHALL NOT BE LIABLE FOR (1) ANY INACCURACY, ERROR IN OR FAILURE OF THE SOFTWARE; (2) ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING FROM ANY DOWNLOAD OR USE MADE OF THE SOFTWARE, OR OCCASIONED BY ANY SUCH INACCURACY, ERROR OR FAILURE OF THE SOFTWARE. IF ANY OF THE ABOVE PROVISIONS ARE VOID UNDER APPLICABLE LAW, HRTBEAT'S LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. In New Jersey, this limitation of liability does not apply to intentional or reckless acts or gross negligence on the part of Hrtbeat.
4. Public Forums and Communication.
4.1 “Public Forum” means an area, site or feature offered as part of any of our Services that offers the opportunity for users to submit content (“User Submissions”) for viewing by one or more of our Service’s users, including without limitation a message board, forum, social community environment, conversation page, personal chat, group chat or blog.
4.2 You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any User Submission to a Public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures voluntarily and at your own risk. You should use good judgment when posting information, remarks or other content regarding other users, service providers, Hrtbeat or any other third party. You may be held legally responsible for damages suffered by other users, Hrtbeat or third parties as a result of legally actionable or defamatory comments, remarks or other information or content which you post to any of our Services. We are not legally responsible for any User Submissions, even if a User Submission is defamatory or otherwise legally actionable.
4.3 You are and will remain solely responsible for the User Submissions you distribute on or through any of our Services in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. You will be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from a User Submission.
4.4 By submitting material to any of our Services, you automatically grant, or warrant that the owner of such material has expressly granted, Hrtbeat the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright or other rights that may exist in such material. You also permit any other user to access, view, store or reproduce the material for that user's personal use. You hereby grant Hrtbeat the right to edit, copy, publish and distribute any material you make available on any of our Services.
4.5 You acknowledge that your use or reliance upon any User Submission posted in any Public Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice, or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith. We do not confirm nor verify the background, qualifications, or abilities of users or the information they post in any Public Forum. Therefore, we recommend that you be careful and exercise common sense and good judgment when using any of our Services or Public Forum.
4.6 Rules of Conduct: you agree that you will not submit any User Submission on any of our Services that:
- is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person;
- is bigoted, hateful, or racially or otherwise offensive;
- is violent, vulgar, obscene, pornographic or otherwise sexually explicit, or otherwise harms or can reasonably be expected to harm any person or entity;
- is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a User Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
- infringes or violates any right of a third party including: (a) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (b) right of privacy (specifically, you must not distribute another person's personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;
- is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
- contains a virus or other harmful component, or otherwise tampers with, impairs or damages our Services or any connected network, or otherwise interferes with any person or entity's use or enjoyment of our Services;
- (a) does not generally pertain to the designated topic or theme of the relevant Public Forum; (b) violates any specific restrictions applicable to a Public Forum, including its age restrictions and procedures; or (c) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet; or
- is false or misleading.
5.1 Some of our Services permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, voice, likeness, image or photograph.
5.2 You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password. You agree not to disclose your password to any third party. You also agree to notify us promptly at [ ] of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to our Services.
5.4 Our failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of our rights.
6. Legal Compliance
8 Hrtbeat's Liability.
8.1 Hrtbeat makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of the Content or about the results to be obtained from using our Services and the Content. Any use of our Services and the Content is at your own risk. Changes are periodically made to our Services and may be made at any time. Some Content on our Services may be provided by third parties and Hrtbeat will not be held responsible for any such Content provided by third parties.
8.2 HRTBEAT DOES NOT WARRANT THAT OUR SERVICES WILL OPERATE ERROR-FREE OR THAT THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADINGOF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS OR THAT DEFECTS WILL BE CORRECTED OR THAT OUR SERVICES OR THEIR SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL GOODS OR THAT . IF YOUR USE OF OUR SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR LOSS OF PROFITS OR DATA, HRTBEAT WILL NOT BE RESPONSIBLE FOR THOSE COSTS.
8.3 THE HRTBEAT SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. HRTBEAT, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.
9. Disclaimer of Certain Damages.
9.1 Your use of the Hrtbeat Sites is at your own risk. If you are dissatisfied with our Services or any of the Content or other contents of our Services or with these Terms and Conditions, your sole remedy is to discontinue use of the Services.
9.2 IN NO EVENT WILL HRTBEAT, ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES OR ANY THIRD PARTIES MENTIONED AT THE HRTBEAT SITES BE LIABLE FOR ANY INJURY, LOSS, CLAIM OR DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, LOST PROFITS,DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, ACTUAL LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) RESULTING FROM THE USE OR INABILITY TO USE THE HRTBEAT SERVICES, PRODUCT AND THE CONTENT, OR ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT HRTBEAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. HRTBEAT WILL NOT BE RESPONSIBLE FOR THE ACTIONS OF ANY INDIVIDUAL OR ANY ACCIDENT THAT RESULTS WHILE USING OR ATTEMPTING TO USE OUR SERVICES OR PRODUCTS.
9.3 IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
9.4 SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE SUCH EXCLUSION OR LIMITATION APPLIES TO THE FULLEST EXTENT ALLOWABLE UNDER THE APPLICABLE LAW. In New Jersey, this disclaimer of damages does not apply to intentional or reckless acts or gross negligence on the part of Hrtbeat.
10. Links to Other Sites.
10.1 Our Services may contain links to third party websites or services that are maintained by others. Any such links are provided solely as a convenience to you and not as an endorsement by Hrtbeat of the contents on such third-party websites. We are not responsible for the content of linked third-party sites and does not make any representations or warranties regarding the content or accuracy of materials on such third-party websites or the privacy practices of such third parties.
10.2 You acknowledge and agree that Hrtbeat shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party websites or services. If you decide to access linked third-party websites, you do so at your own risk.
11. Third-party Applications.
11.1 On our Services, you might have an opportunity to download applications that were developed by third-parties. Hrtbeat is not responsible for and makes no representations or warranties regarding the content or functionality of these third-party applications or the privacy practices of such third-party developers. You acknowledge and agree that Hrtbeat shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with download, use of or reliance on any such application developed by any such third party. If you decide to download and use any of these third-party applications, then you do so at your own risk.
12.2 This indemnification provision does not apply to intentional or reckless acts or gross negligence on the part of Hrtbeat.
13 Export Control.
13.1 The United States and certain other countries control the export of products and information. You agree to comply with such restrictions and not to export or re-export the Content or Services to countries or persons prohibited under export control laws. By downloading the Content, or Accessing the Services, you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Content and Services.
14. Copyright Policy
14.1 Hrtbeat respects the intellectual property rights of others. Hrtbeat shall, at its discretion and when appropriate, terminate the accounts of users who may infringe or repeatedly infringe, or who we believe has infringed upon the copyrights of third parties.
14.2 If you are aware of any intellectual property right infringement by a user of our Service, please submit a copyright infringement notification to Hrtbeat. To do this, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the below indicated Copyright Agent with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- 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.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.3 You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your DMCA notice may not be valid. We recommend that you see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications.
14.4 Our Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows:
By Email: firstname.lastname@example.org
DMCA Designated Copyright Agent
Attn: Legal Department
Hrtbeat Audio, Inc.
14.5 If you believe that a notice was wrongly filed against you under the DMCA, you may file a counter-notice to our designated individual with the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification or an agent of such person.
16. Mandatory Arbitration and Class Action Waiver for Residents of the United States.
16.2 Initial Dispute Resolution. If you have any dispute with us, you agree that before taking any formal action, you will contact us, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Hrtbeat, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
16.5 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND HRTBEAT 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 PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
16.6 The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in New York, and you and Hrtbeat agree to submit to the personal jurisdiction of any federal or state court in New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
16.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
16.8 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
17.1 Governing law. Except to the extent provided below in this paragraph, all legal issues arising from or related to the use of any of our Services will be construed in accordance with and determined by the laws of the State of New York applicable to contracts entered into and performed within the State of New York without respect to its conflict of laws principles. By using any of our Services, you agree that the exclusive forum for any claims or causes of action arising out of your use of such Service is the United States District Court for the District of New York or any US State court. You hereby irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
17.2 Force Majeure. Under no circumstances shall Hrtbeat or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
17.3 No Waiver. If we fail to insist that you perform any obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights and will not mean that you do not have to comply with your obligations. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.
17.4 Severability. Each of the provisions of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining provisions will remain in full force and effect.
17.5 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
17.7 Notices. By registering an Account and/or using the Service, you consent to receiving electronic communications from us relating to your Account, purchases and the Service. We may deliver notice to you by email, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received by mail.
17.8 Customer Support. In the event of a complaint, or to request further information, the provider may be contacted in writing at Hrtbeat Audio by e-mail at email@example.com.