terms-of-service | specdrums-v2

Specdrums, Inc. (“Specdrums,” “we,” or “our”) provides a mobile system for making music. Once paired with color-sensing rings (“devices”), Specdrums’ mobile application (“app”) plays sounds based on the color the ring(s) sense(s) when the user (“you” or “your”) taps the ring on a surface. The following terms and conditions, along with any documents expressly incorporated by reference (collectively, “Terms of Service,” “Terms,” or “TOS”) apply to and govern your access to and use of Specdrums’ website and mobile application (collectively, “Site”), and APIs, products, content and services (collectively with the Sites, the, “Service”).

Please note these TOS include a class-action waiver and a waiver of jury trials, and require binding arbitration on an individual basis to resolve disputes.

Acceptance of the Terms

You accept and agree to be bound and abide by these TOS and our Privacy Policy, incorporated herein by reference, when you create a Specdrums account or when you access or use the Service. If you do not accept the TOS or Privacy Policy, you may not access or use the Service.

Changes to the Terms

We may revise, update, modify, or discontinue any part of these TOS by posting revised terms on the Sites. We will notify you of such changes by posting the modified, dated version on the Sites. If the changes are significant, we will provide a more prominent notice (for example, by email, Site notification, or click-through). Please visit the Sites periodically to view the latest version of these TOS. All changes are effective immediately and apply to all access to and use of the Service thereafter. Your continued use means that you accept and agree to the updated TOS.

Use of the Service

Persons under 13 years of age may not create a Specdrums account, access, or use the Service without a parent’s consent.

We may suspend or deactivate your account or your access to the Service without notice or liability to you, if, in our sole discretion, you have violated any provision of these TOS. Upon any such suspension or deactivation, we may delete or remove your account and any related information and data.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Service: (i) access or tamper with non-public areas of the Service, (ii) test the vulnerability of any Service system or breach any security or authentication measures, (iii) circumvent any technological measure designed to protect the Service, or (iv) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of the Service.

Alerts and Notifications

As part of your use of the Service, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. However, you can opt out of most communications within your account settings. Specdrums is not responsible for any messaging or data fees your wireless carrier charges you. Any notices, agreements, disclosures, or other communications that we post to the Service or send to you electronically will satisfy any legal communication requirements, including that the communication be in writing, and will be deemed received when posted to the Sites or when such notice is transmitted.

Changes to the Service

Specdrums may change or discontinue any feature or component of the Service. Specdrums is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature or component of the Service. We may determine the timing and content of software updates which may be automatically downloaded and installed by Specdrums products.

Trademarks, Copyrights and Patents

All trademarks, logos, and service marks displayed on the Service, are registered and unregistered trademarks of Specdrums, its affiliates, licensors, content providers or other third parties. All of these trademarks, logos and service marks are the property of their respective owners. You must obtain the prior written permission of Specdrums or the owner of such marks to use them for commercial purposes. The Sites and all associated content, including but not limited to text, design, graphics, videos, sound files, interfaces and code, and the selection and arrangement thereof (collectively, “Content"), is owned by Specdrums and its licensors, and protected by U.S. and international copyright laws. We reserve all rights not expressly granted in and to the Sites and Content. All products displayed on the Sites are protected by copyright and/or patents owned by Specdrums and its licensors.

Limited License

The Specdrums Sites and Content are licensed and not sold to you. Subject to the terms, conditions, and limitations set forth in these TOS, Specdrums grants you a limited, temporary, non-exclusive, non-transferable, and non-sublicensable license to install and use the Sites and Content.

User Contributions

You may upload, submit, store, send, receive, or create product reviews, sound files, and other types of user generated content (collectively, “User Contributions”). You retain ownership of all intellectual property rights in your User Contributions; you grant us a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from adaptations or variations), communicate, publish, publicly perform, publicly display and distribute your User Contributions for any purpose.

We reserve the right, but are not obligated to do any or all of the following: (i) monitor User Contributions; (ii) alter, remove, or refuse to post or allow to be posted any User Contributions; (iii) disclose any User Contributions, and the circumstances surrounding their transmission, to any third party as required by law; and (iv) take appropriate legal action, including, without limitation, referrals to law enforcement, for any illegal or unauthorized use of the Service.

You are responsible for any User Contributions you submit or contribute, and you, not Specdrums, have full responsibility for your User Contributions, including their legality, reliability, accuracy and appropriateness. You represent and warrant that (i) you own or control all rights in and to your User Contributions, and (ii) all of your User Contributions do and will comply with these TOS. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.

Specdrums may remove any Content, User Contributions, or other material from the Service. If you believe your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please notify our copyright agent at:

Suite 100

Boulder, CO 80302
info@specdrums.com

Your notification must (i) be in writing and signed, (ii) be provided to our copyright agent, and (iii) include substantially the following:

Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the song that [list location where material is located].”);
Identify the content that a copyright owner claims is infringing upon copyrighted work. Provide information reasonably sufficient to enable us to locate the content on the Sites, including clear screenshots of the content for identification purposes only;
Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
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; and
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.

Content Standards

These content standards apply to any and all User Contributions. User Contributions must comply with all applicable federal, state, local and international laws and regulations and the TOS. Without limiting the foregoing, User Contributions must not:

Contain any material which is inaccurate, deceptive, misleading, defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
Infringe any patent, trademark, trade secret, copyright or other intellectual property or other right of any other person;
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the TOS or Privacy Policy;
Promote any illegal activity, or advocate, promote or assist any unlawful act;
Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, bartering or advertising;
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Information About You and Your Visits to the Sites

All information we collect on the Sites is subject to our Privacy Policy. By using the Service, you consent to all actions taken by us with respect to your information as set forth in our Privacy Policy: www.specdrums.com/privacy.

Online Purchases

If you purchase any goods or services through the Sites (each such purchase, a "Transaction"), we may ask for information from you, such as your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) USED IN CONNECTION WITH ANY TRANSACTION. Specdrums may provide such submitted information to third parties for purposes of facilitating the completion of any Transaction initiated by you or on your behalf. You may be required to verify any submitted information prior to our acknowledgment or completion of any Transaction.

You are responsible for your compliance with all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from the Sites. You represent that you will use the products and services only in a lawful manner. Specdrums may: (i) limit the available quantity of or discontinue any goods or services; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and/or (iv) refuse to provide any user with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Sites, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transaction(s).

Specdrums or our agents may call or text you regarding your account or your Transactions, as set forth in our Privacy Policy. You agree that we may place such calls or texts using an automatic dialing/announcing device, and that we may make such calls or texts to a mobile telephone or other similar device. You agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us.

Pricing, Availability, and Accuracy

Specdrum's acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. Specdrums makes a conscientious effort to describe and display its products and services accurately on the Sites. Despite these efforts, some items may be mispriced, described or displayed inaccurately, or unavailable, and we may experience delays in updating information on the Sites and in our advertising through other media. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability, and services. Specdrums may change or update information and correct errors, inaccuracies, or omissions.

Linking to the Sites and Social Media Features

You may link to the Sites, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

The Sites may provide certain social media features that enable you to:

Link from your own or certain third‐party websites to certain content on the Sites;
Send e‐mails or other communications with content, or links to content, on the Sites;
Cause limited portions of content on the Sites to be displayed or appear to be displayed on your own or certain third‐party websites.
Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you;
- Cause the Sites to be displayed, or appear to be displayed by, for example, framing, deep linking or in‐line linking, on any other site;
- Otherwise take any action with respect to the materials on the Sites that is inconsistent with any other provision of the TOS.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these TOS. We may withdraw linking permission and disable all or any social media features and any links at any time.

Links from the Sites

The Sites may contain links to other sites and resources provided by third parties, which are provided for your convenience only. This includes links contained in advertisements, such as banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of those sites or resources. If you decide to access any of the third party websites linked to the Sites, you do so entirely at your own risk and your use is subject to the privacy policies and terms and conditions of use that govern such websites.

Geographic Restrictions

Specdrums is based in the state of Colorado in the United States. We make no claims that the Service is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative, at your sole risk, and you are responsible for compliance with all applicable laws.

Medical Warnings

Use of the Service is at your own risk. We are not responsible for any health problems that may result from your use of the Service or injuries due to the physical nature of wearing a device during any activity. Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Sites will be free of harmful or destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti‐virus protection and accuracy of data input and output, and for maintaining an external backup to restore any lost data. WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL‐OF‐SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL OR DESTRUCTIVE CODE THAT MAY INFECT YOUR MUSICAL OR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, MOBILE DEVICES, MOBILE APPLICATIONS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE AND CONTENT.

YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR OWN RISK. THE SERVICE AND CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITELY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. We make no warranty that the Service or Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the Service or Content. We make no warranty that any defects in the Service or Content will be corrected.

Limitation of Liability

IN NO EVENT WILL SPECDRUMS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO THE SITES, ANY CONTENT, OR SUCH OTHER SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, AND WHETHER OR NOT SPECDRUMS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HERIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

IN NO EVENT WILL SPECDRUMS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TOS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO SPECDRUMS FOR PRODUCTS AND/OR USE OF THE SERVICE.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPECDRUMS AND YOU.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification

You agree to indemnify, defend and hold harmless Specdrums, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, suits, actions, demands, disputes, allegations, investigations, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including, without limitation, reasonable attorneys' fees) arising out of or in any way connected with (i) your access to or use of the Service, (ii) your User Contributions, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of the TOS, or (iv) your violation of any law or the rights of a third-party. We may assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

Information, News and Press Releases

The Sites may contain information, news and/or press releases about Specdrums and its affiliates. While we strive to ensure that information contained on the Sites is current, accurate and reliable as of the date it was prepared, we disclaim any duty or obligation to update this information, news or press releases. Information about companies other than us contained in the news, press releases or otherwise, should not be relied upon as being provided or endorsed by Specdrums.

Waiver

Any waiver by either you or Specdrums of any provision or condition of the TOS shall not be construed or deemed to be a waiver of any other provision or condition of the TOS, nor a waiver of a subsequent breach of the same provision or condition, unless such is expressed in writing and signed by the party to be bound.

Disputes

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US. IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Agreement to Arbitrate

You and Specdrums agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to this or previous versions of the TOS, your use of the Service, or to any other Specdrums products or services (collectively, “Disputes”) will be resolved by binding arbitration, rather than in court (the “Arbitration Agreement”), except that you may assert claims in small claims court if your claims qualify and the case proceeds as an individual (non‐class, non‐representative) case. The Federal Arbitration Act and Rules apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the TOS as a court would.

We want to address your concerns without needing a formal legal case. Before filing a claim against Specdrums, you agree to try to resolve the Dispute informally by contacting info@specdrums.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 21 days after submission, you or Specdrums may bring a formal proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

The American Arbitration Association (AAA) will conduct the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The AAA's rules are available at www.adr.org or by calling 1‐800‐778‐7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.

The arbitration hearing will be held in the U.S. You or Specdrums may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Specdrums subject to the arbitrator's discretion to require an in‐person hearing.

The arbitrator will decide all claims in accordance with applicable law. The arbitrator shall not be bound by rulings in prior arbitrations involving other Specdrums customers, but is bound by rulings in prior arbitrations involving the same Specdrums customer to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the arbitrator's award may be entered in any court having jurisdiction.

Prohibition of Class, Representative, and Consolidated Actions

You and Specdrums agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action. Unless both you and Specdrums agree otherwise, the arbitrator may not join more than one party's claims, and may not adjudicate or determine any form of a representative, class, or consolidated proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party bringing the claim, if such relief is warranted by the facts and law. Any relief awarded by the arbitrator will not affect other Specdrums customers.

If a claim proceeds in court rather than in arbitration, both you and Specdrums each waive any right to a jury trial. You and Specdrums also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights without first engaging in arbitration or the informal dispute-resolution process described above.

Governing Law and Jurisdiction

Any dispute or claim relating in any way to the TOS or previous versions of the TOS or your use of the Service shall be governed by and construed in accordance the laws of the State of Colorado without regard to its conflict of laws principles.

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, any legal suit, action or proceeding arising out of or related to the TOS or previous versions of the TOS or your use of the Service shall be instituted exclusively in the federal or state courts located in Denver, Colorado. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

You can decline this agreement to arbitrate by contacting info@specdrums.com within 30 days of first accepting the TOS and stating that you (include your first and last name) decline this arbitration agreement.

Assignment

You may not assign, delegate, or transfer the TOS, by operation of law or otherwise, without Specdrum’s prior written consent. Any attempt by you to assign or transfer the TOS, without such consent, will be null. Specdrums may freely assign or transfer the TOS without restriction. Subject to the foregoing, the TOS will bind and inure to the benefit of the parties, their successors, and permitted assigns.

Severability

If any portion of the TOS is unlawful, void or unenforceable, the remaining provisions will remain in place.

Entire Agreement

The TOS and Privacy Policy constitute the entire agreement between you and Specdrums with respect to the Service and supersede all prior and contemporaneous negotiations, agreements, proposals and understandings both written and oral, with respect to the Service.

PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THE TOS.

Specdrums, Inc.

1023 Walnut St.

Suite 100

Boulder, CO 80302

info@specdrums.com

Terms of Service

Last revised December 4, 2017

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