RHYTHMLOCK TERMS OF SERVICE
Posted August 16, 2020
Please read the following terms of service (“Agreement” or “Terms of Service”) before you install the RhythmLock application or use any of the products or services we provide through our application, software or website (all of which are referred to collectively herein as the “RhythmLock Technologies”). The RhythmLock Technologies are owned, licensed and operated by Colin Sapp (referred to herein as “we,” “us,” “our,” or “RhythmLock”), which has developed applications and services for use in connection with a variety of devices and platforms, including without limitation, Windows, Mac, iPhone, iPad, Kindle Fire, Android, Windows phone, Chrome, Safari, Firefox and other mobile devices, computers and technological services or applications. The Terms of Service constitute a binding legal agreement, which govern your use of the RhythmLock Technologies via any platform or device. By registering for and/or using the RhythmLock Technologies in any manner, including but not limited to visiting or browsing the RhythmLock website, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the RhythmLock website by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you. Certain of the RhythmLock Technologies may be subject to additional terms and conditions specified by us from time to time; your use of such RhythmLock Technologies is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. These Terms of Service apply to all users of the RhythmLock Technologies, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
This Agreement includes the following provisions:
- The RhythmLock Service
- License Grant
- Beta Services
- License Restrictions
- Information You Provide
- Copyright Infringement
- Third Party Websites, Software and Services
- Proprietary Rights Notices
- Disclaimer of Warranties
- Limitation of Liability
- Governing Law
- No Waiver
- Relationship of the Parties
- Force Majeure
- Entire Agreement
- International Access
- Access by Children
- Electronic Communications
- Revisions to Agreement
- Copyright Notice
If you have questions or concerns regarding this Agreement or RhythmLock Technologies, you should contact us at email@example.com.
THE RHYTHMLOCK SERVICE
The RhythmLock software application, supporting files and accompanying documentation (referred to collectively herein as the “RhythmLock application”) is provided solely for your personal, noncommercial use. The content that you choose to save may be protected by copyright and other laws. Please refer to the website you were visiting when you saved such content for copyright notices, information and restrictions that may be applicable to such content.
We respect the intellectual property of others, and we ask our users to do the same. The RhythmLock Technologies allow you to time-shift across devices and platforms so that you can access information later that you had the right to access when you saved such content to RhythmLock. As a condition to your use of the RhythmLock Technologies, you agree not to use the RhythmLock Technologies to infringe any intellectual property rights. We reserve the right, at any time, in our sole discretion, with or without notice, to terminate the accounts of, and block access to the RhythmLock Technologies to, any users who infringe any copyrights or other intellectual property rights.
Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, personal, nontransferable, non-sublicensable, noncommercial right and license to: (1) download and use a copy of the RhythmLock application on up to ten devices that you own and control; and (2) view and use the RhythmLock Technologies on up to ten devices that you own and control, including, without limitation, the products and services made available on or through the RhythmLock application or our website. No other right or license of any kind is granted to you hereunder with respect to the RhythmLock Technologies. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise, any license or other grant of right to use any patent, copyright, trademark, service mark, trade secret or other intellectual property right, except as expressly provided herein. If you want to make commercial use of any of the RhythmLock Technologies, you must enter into a separate written agreement with us in advance. The license provided herein is effective until terminated. This license automatically terminates if you fail to comply with the terms and conditions of this Agreement. You agree that, upon such termination, you will destroy or permanently erase all copies of the RhythmLock Technologies.
By submitting content through the RhythmLock Technologies, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully-paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit your content in connection with the RhythmLock website, the RhythmLock Technologies and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the RhythmLock website or the RhythmLock Technologies (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the RhythmLock Technologies. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
In other words, your content remains yours. The foregoing license grants do not give RhythmLock any rights to your content except for the limited rights that enable us to offer and improve the RhythmLock application. We need your permission to do things like hosting your content, backing it up, and sharing it when you ask us to. The RhythmLock application also provides you with features like previews, easy sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan your content. You give us permission to do those things, and this permission extends to our affiliates and trusted third parties we work with.
RhythmLock may, from time to time, release products and features that RhythmLock is still testing and evaluating. Those services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as RhythmLock’s other services.
The RhythmLock Technologies, including, but not limited to, the RhythmLock application and all other programs, text, graphics, files and other content are owned and copyrighted by RhythmLock and its licensors, and are protected worldwide. We retain all right, title and interest in and to the RhythmLock Technologies and any portion thereof, including, without limitation, all patent rights, copyrights, trademarks (including without limitation the RhythmLock logo), service marks, trade secrets and other intellectual property rights, any derivative work of the RhythmLock Technologies, and any Update, and any copies thereof, regardless of the form or media in or on which the original or other copies may subsequently exist. For purposes of this Agreement, “Update” shall mean any modification, error correction, bug fix, new release, upgrade, patch or other update to or for the RhythmLock application. You agree to take any action reasonably requested by us to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with our ownership of and rights with respect to the RhythmLock Technologies, or any derivative work or Update. This license is not a sale of the original or any backup copy. All rights are reserved unless otherwise noted.
Your access to and use of the RhythmLock Technologies is subject to this Agreement and all applicable laws and regulations. You may not: (1) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the RhythmLock Technologies, including any of its files, tables or documentation, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the RhythmLock application or any portion thereof; (2) distribute, license, transfer, or sell, in whole or in part, any of the RhythmLock Technologies or any derivative works thereof; (3) market, rent or lease the RhythmLock Technologies for a fee or charge, or use the RhythmLock Technologies to advertise or perform any commercial solicitation; (4 ) use the RhythmLock Technologies to upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; (5) interfere with or attempt to interfere with the proper working of the RhythmLock Technologies, any transactions being offered in connection with the RhythmLock Technologies or any other activities conducted by us, disrupt our website or any networks connected to the RhythmLock Technologies, or bypass any measures we may use to prevent or restrict access to the RhythmLock Technologies; (6) exploit the RhythmLock Technologies in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity; (7) use any robot, spider, scraper, or other automated means to access our website or proprietary work for any purpose without our prior written permission; (8) use the RhythmLock Technologies to collect or harvest personal information about other users of the RhythmLock Technologies; (9) take any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure; (10) share any content with any unreasonably large number of persons, including without limitation sending blast communications to a large number of recipients or sharing content with persons you do not know or who do not know you; (11) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (12) use the RhythmLock Technologies, or any other services, products, or downloads available in connection with the RhythmLock Technologies for illegal purposes; (13) represent that you are the owner of any of the RhythmLock Technologies, including any of its individual files, drawings or documentation; (14) remove or alter any proprietary notices, labels, marks or identifying information of any kind on the RhythmLock Technologies; (15) incorporate the RhythmLock Technologies or any portion thereof into any other program or product; (16) use the RhythmLock Technologies for any purpose other than in accordance with the terms and conditions of this Agreement; (17) copy or reproduce, in any form or by any means, any part of the RhythmLock Technologies (except that you may make one copy of the RhythmLock application for archival or backup purposes only, provided that any such copy contains the copyright and proprietary notices in unaltered form); (18) make the functionality of the application available to multiple users through any means, including, but not limited to distribution of the application or by uploading the application to a network or file-sharing service or through any hosting, application services provider or any other type of service; or (19) abuse referrals or promotions to receive more storage space than deserved. We reserve the right to refuse service, terminate accounts or limit access to the RhythmLock Technologies in our sole discretion.
INFORMATION YOU PROVIDE
If you choose to send us any message, feedback or data, including, but not limited to, any ideas, comments, suggestions or questions regarding any product or service, such information shall be deemed to be non-confidential. We shall have no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose and distribute the information to others without limitation. Further, we shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and services incorporating such ideas, concepts, know-how or techniques. The RhythmLock Technologies enable users to share, save or post information or content or materials, or to communicate with or otherwise share information with other users or persons. You agree not to share, save, submit, publish, display, disseminate, or otherwise communicate any defamatory, inaccurate, abusive, threatening, offensive, indecent, illegal or otherwise objectionable material, or any material that violates any federal, state, or local law in the United States or anywhere else in the world. You are solely responsible for all information which you share, save, submit, publish, display, disseminate or otherwise communicate through the RhythmLock Technologies, even if a claim should arise after termination of service. You agree that all such content and/or communications shall not be deemed to be private or secure, and that any such content can be read by the operators and/or other agents of RhythmLock, whether or not they are the intended recipients. If we or any other person asks you to cease and desist from sharing content with any third party, or to cease communicating with any third party via the RhythmLock Technologies, you agree to comply with such request immediately.
The content made available on third-party websites may be protected by copyright and other applicable laws. Please refer to the website you were visiting when you saved such content for copyright notices, information and restrictions that may be applicable to such content. Some content may not be reproduced, used to prepare derivative works, distributed, performed publicly or displayed publicly without the written permission of the copyright holder, except to the extent allowed under the “fair use” provisions of the U.S. copyright laws, other limitations on exclusive copyrights in the U.S. copyright laws, or comparable provisions of foreign laws.
You represent and agree that the RhythmLock application will be used solely for your personal-noncommercial use with respect to content of websites that you have the lawful right to access, and that the RhythmLock application will not be used in violation of the restrictions posted on the website where such content was published. Some websites include security measures designed to prevent access, and you agree not to take any steps to defeat any such security measures. We do not necessarily monitor any materials posted, transmitted, or saved to or with the RhythmLock Technologies. By posting, sharing or saving content, you represent that doing so does not infringe any third party’s copyrights, trademarks, privacy rights or other intellectual property or legal rights of any kind, and there are no payments due of any kind to a third party though the use of your content through the RhythmLock Technologies. If notified that any user has posted, shared or saved any information or materials which allegedly do not conform to this Agreement, we may in our sole discretion investigate the allegation and determine whether to take any other actions, including, but not limited to, whether to remove or request the removal of the information or materials posted, shared or saved by a user. We also reserve the right to terminate the account of any user who transfers or saves content in violation of this Agreement. We shall have no liability or responsibility to users for performance or nonperformance of such activities. You may be subject to civil and criminal penalties, including without limitation monetary damages, if you violate the terms of this Agreement or infringe any third party’s legal rights.
If you believe that your copyrighted work or trademark has been infringed, please contact us and provide all information relevant to any claim of copyright or trademark infringement. Please contact us as follows: By email: firstname.lastname@example.org
THIRD PARTY WEBSITES, SOFTWARE AND SERVICES
The content, products and services available via the RhythmLock Technologies include materials from non-affiliated third parties. We also participate in joint marketing and other service offerings with third parties and our website contains links to third-party sites. The RhythmLock Technologies also integrate, only at your request, with third-party software applications and services that enable you to save to RhythmLock within such third-party applications and to utilize the information we collect to improve the service offerings by such third parties. Such third parties may provide you with an opportunity to install the RhythmLock application or use the RhythmLock Technologies from or through their websites or such third parties may request to access or use your RhythmLock user account or other information so that they can customize the services that they provide to you. For example, if you are on a third-party website, you may be provided with the opportunity to download and install the RhythmLock application or you may be redirected to our website or provided with access to the RhythmLock Technologies. The third parties that contract with us are independent, and are not our agents. Such services are provided for your convenience only. We do not control, and are not responsible for, the content of, or products or services available through, any third-party websites, including without limitation the websites that offer content that you choose to save to RhythmLock. We are not responsible for examining or evaluating any third-party content. You understand and agree that we do not warrant and shall not be liable for any third-party materials or websites. You also agree that you will not use any third-party content or materials in a manner that would infringe or violate the rights of any other party and that we are not in any way responsible for any such use by you.
If you are accessing the RhythmLock Technologies via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, the following shall apply:
- Both you and RhythmLock acknowledge that these Terms of Service are concluded between you and RhythmLock only, and not with Apple, and that Apple is not responsible for the application or the content;
- The application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the RhythmLock Technologies for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the RhythmLock Technologies;
- You will only use the application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the application;
- In the event of any failure of the application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the application;
- You acknowledge and agree that RhythmLock, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the application;
- You acknowledge and agree that, in the event of any third party claim that the application or your possession and use of the application infringes that third party’s intellectual property rights, RhythmLock, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and RhythmLock acknowledge and agree that, in your use of the application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and RhythmLock acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
If you are accessing the RhythmLock Technologies via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, you may in the future be able to purchase (“In App Purchase”) certain goods or additional features or applications designed to enhance the performance of the Services (“Goods”). When you purchase such Goods, you are doing so through Apple iTunes service and you are agreeing to Apple’s iTunes’ Terms and Conditions (http://www.apple.com/legal/itunes/us/terms.html).
If you have developed a software application and are interested in integrating such application with the RhythmLock Technologies, you must enter into our API License Agreement. Please contact us at email@example.com for additional information.
PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of RhythmLock used herein are trademarks or registered trademarks of RhythmLock. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
DISCLAIMER OF WARRANTIES
Reasonable efforts are taken to improve the accuracy and integrity of the RhythmLock Technologies, but we are not responsible for mistakes, out-of-date information, inaccuracies, typographical or other errors. Notwithstanding any other provision of this Agreement, we reserve the right to change, suspend, remove, or disable access to any of the RhythmLock Technologies, content, or other materials comprising a part of the RhythmLock Technologies at any time without notice. In no event will we be liable for making these changes. As a registered user in good standing, you may be provided with limited access to the content saved to RhythmLock. Such access is provided as an accommodation only, and the items you save with RhythmLock may be deleted at any time and for any reason. We do not warrant, and will not have any liability or responsibility for, your use of RhythmLock or the products or services we provide. We may also impose limits on the use of or access to certain features or portions of the RhythmLock Technologies, for any reason and without notice or liability. Our website, products and services may be unavailable from time to time due to mechanical, telecommunication, software, and other failures. We cannot predict or control when such downtime may occur and cannot control the duration of such downtime.
THE RHYTHMLOCK TECHNOLOGIES (INCLUDING, WITHOUT LIMITATION, OUR APPLICATION, SOFTWARE, PRODUCTS, SERVICES AND WEBSITE) ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE COMPLETENESS, ACCURACY, ADEQUACY, SUITABILITY, FUNCTIONALITY, AVAILABILITY, OR OPERATION OF THE RHYTHMLOCK TECHNOLOGIES. YOU ACKNOWLEDGE THAT WE DO NOT HAVE CONTROL OVER YOUR USE OF THE RHYTHMLOCK TECHNOLOGIES, AND WE DO NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH YOUR USE OF THE RHYTHMLOCK TECHNOLOGIES. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR YOUR USE OF THE RHYTHMLOCK TECHNOLOGIES AND FOR ANY LOSS OF OR ERRORS IN ANY DATA OR INFORMATION. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE RHYTHMLOCK TECHNOLOGIES WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTIES, NOR THAT THE RHYTHMLOCK TECHNOLOGIES WILL BE AVAILABLE FOR YOUR ACCESS OR USE, NOR THAT OPERATION OF THE RHYTHMLOCK TECHNOLOGIES WILL BE ERROR FREE OR UNINTERRUPTED. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
LIMITATION OF LIABILITY
THERE ARE INHERENT RISKS IN RELYING UPON, USING, OR RETRIEVING ANY INFORMATION FOUND ON THE INTERNET, AND WE URGE YOU TO MAKE SURE YOU UNDERSTAND THESE RISKS BEFORE USING THE RHYTHMLOCK TECHNOLOGIES OR ANY WEBSITE THAT PROVIDES YOU WITH ACCESS TO THE RHYTHMLOCK TECHNOLOGIES. YOUR USE OF THE RHYTHMLOCK TECHNOLOGIES IS AT YOUR OWN RISK. NEITHER RHYTHMLOCK, INC. NOR ANY OF ITS CURRENT OR FUTURE PARENTS, SUBSIDIARIES OR AFFILIATES, NOR ANY OF THEIR EMPLOYEES, OFFICERS OR DIRECTORS, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF BUSINESS, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF COVER OR ANY OTHER DAMAGES) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE RHYTHMLOCK TECHNOLOGIES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You agree, at your own expense, to indemnify, defend and hold harmless Colin Sapp, its current or future parents, subsidiaries and affiliates, and their officers, directors, employees, agents, distributors and licensees, from and against any judgments, losses, deficiencies, damages, liabilities, costs, claims, demands, suits, and expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees and expenses) incurred in, arising out of or in any way related to your breach of this Agreement, your use of the RhythmLock Technologies, or any of your other acts or omissions.
ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF ANY OF THE RHYTHMLOCK TECHNOLOGIES, INCLUDING WITHOUT LIMITATION ANY DISPUTES RELATED TO THE RHYTHMLOCK PREMIUM SUBSCRIPTION SERVICE, WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS AGREEMENT.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. AN ARBITRATOR, HOWEVER, MAY AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING, WITHOUT LIMITATION, INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS OF SERVICE AS A COURT WOULD. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, AND ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT. THE ARBITRATOR WILL DECIDE ALL ISSUES, INCLUDING, WITHOUT LIMITATION, ISSUES RELATING TO THE SCOPE AND ENFORCEABILITY OF THIS ARBITRATION PROVISION.
To initiate an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: Colin Sapp, 921 Boylston St, 4th Floor, Boston, MA 02115. Unless you and we agree otherwise, any arbitration will take place in the county (or parish) where you live. The arbitration will be conducted by JAMS in accordance with that organization’s “Streamlined Arbitration Rules & Procedures” if JAMS has an office in the county (or parish) where the arbitration takes place. Otherwise, the arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association (AAA) rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. JAMS rules and other information are available at https://www.jamsadr.com or by calling 800.352.5267. The AAA’s rules and other information 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 applicable JAMS or AAA rules. We will promptly reimburse you for your payment of the filing fees, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the applicable JAMS or AAA rules. The arbitrator shall have the discretion to award reasonable attorneys’ fees and costs (including the cost of the arbitration and of experts) to the prevailing party, but we will only seek such fees if the arbitrator determines that your claim is frivolous.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
By using any of the RhythmLock Technologies, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of laws, will govern these Terms of Service and any dispute of any kind that might arise between you and us.
This Agreement is effective unless and until terminated as expressly provided herein. We may terminate this Agreement at any time and may do so immediately without notice, without any liability to you, and accordingly deny you access to the RhythmLock Technologies, in our sole discretion, if you have failed or we suspect you have failed to comply with any term or provision of this Agreement. Upon any termination of this Agreement, you must promptly destroy all materials downloaded or otherwise obtained from us, as well as all copies of such materials. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not release you from any liability for breach of your obligations under this Agreement.
RhythmLock will provide you with reasonable advance notice via the email address associated with your account to remedy the activity leading to termination, and allow you to export your saved content from the RhythmLock Technologies. If after such notice you fail to take the necessary steps to remedy the issue, RhythmLock reserves the right to terminate or suspend access to the RhythmLock Technologies. Advance notice for termination will not be provided in the following circumstances: (1) you are in material breach of these Terms of Service; (2) notice of termination would cause RhythmLock to incur legal liability or would compromise RhythmLock’s ability to provide the RhythmLock Technologies to other users; or (3) RhythmLock is prohibited by law to provide advance notice of termination.
This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by you without our prior written consent. Subject to the preceding sentence, the rights and liabilities of the parties hereto is binding on, and shall inure to the benefit of, the parties and their respective successors and assigns. Any attempted assignment other than in accordance with this section shall be null and void.
If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitrator or tribunal, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor their agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
We shall not be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of RhythmLock and you.
The RhythmLock Technologies may be accessed from countries other than the United States. We control and operate the RhythmLock Technologies from offices located in the United States and all servers that make it available reside in the United States. We make no representations or warranties that the RhythmLock Technologies are appropriate for use or access in other locations. If you access and use the RhythmLock Technologies outside the United States, you do so on your own initiative and you are responsible for complying with United States and your local laws and regulations, if and to the extent such laws are applicable.
You may not use, export, re-export, import or transfer the RhythmLock Technologies except as authorized by United States law, the laws of the jurisdiction in which you obtained the RhythmLock Technologies, and any other applicable laws. In particular, but without limitation, the RhythmLock Technologies may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the RhythmLock Technologies, you represent and warrant that you are not located in any such country or on any such list. You also may not use the RhythmLock Technologies for any purpose prohibited by U.S. law. We reserve the right to limit, in our sole discretion, the availability of the RhythmLock Technologies or any portion thereof, to any person, geographic area, or jurisdiction, at any time.
We reserve the right to limit, in our sole discretion, the availability of the RhythmLock Technologies or any portion thereof, to any person, geographic area, or jurisdiction, at any time.
ACCESS BY CHILDREN
In the United States, if you are a device manufacturer or other third party (the “Sponsor”) that provides devices to children under the age of 13 that utilize the RhythmLock Technologies, you assume the responsibility for complying with the U.S. Children’s Online Privacy Protection Act (“COPPA”) and, to the extent applicable, The Family Educational Rights and Privacy Act (“FERPA”). This means that the Sponsor must notify parents/guardians of the information to be collected and obtain parental/guardian consent before collecting and sharing with the RhythmLock application the personal information of children under the age of 13 in order to establish an account or use the RhythmLock Technologies. Schools may under appropriate circumstances provide such consent on behalf of parents/guardians. For more information on complying with COPPA, see the Federal Trade Commission’s website at http://www.ftc.gov/privacy/coppafaqs.shtm.
Except as provided in the paragraph above, the RhythmLock Technologies are not for individuals under the age of 13. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand and agree to it.
If you send emails to us, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the RhythmLock Technologies. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that we may send email to you for the purpose of advising you of changes or additions to the RhythmLock Technologies about any of our products or services, or for such other purposes as we deem appropriate.
REVISIONS TO AGREEMENT
We may, at any time, revise this Agreement. If we modify the Terms of Service, we will post the modification on our website, through the RhythmLock Technologies, or otherwise provide you with notice of the modification. Prior to each usage of the RhythmLock Technologies, you should review the Terms of Service to determine the current Agreement to which you are bound. For your convenience, we include the effective date of the Agreement at the beginning of the document, so that you can easily ascertain whether it has been updated since the last time you viewed the Terms of Service. Your continued use of the RhythmLock Technologies constitutes acceptance of this Agreement at the time of each use. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the RhythmLock Technologies. Notwithstanding the preceding sentences of this paragraph, no revisions to the Terms of Service will apply to any dispute between you and RhythmLock that arose prior to the date of such revision. These Terms of Service may only be modified in writing as set forth in this paragraph, and may not be modified orally.
Copyright © 2020 Colin Sapp. All rights reserved.