Minibeats | Terms of Service

Last Updated: November 16th, 2022

Thank you for visiting Artiphon’s website, mobile applications and/or other services. By accessing or using Artiphon’s website mobile apps, social media features and other online services (each, a "Site"), whether automated or otherwise, you agree to be bound by these Terms of Use, to the collection and use of your information as set forth in our Privacy Policy, which is located at https://artiphon.com/pages/privacy, and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of, or offerings on or through, the Site. Please read these Terms of Use carefully before using or accessing the Site. These Terms of Use supersede any prior Terms of Use and apply to all visitors, users, vendors, and others who use or access the Site (all of the foregoing, collectively “Users”).

Artiphon’s website and/or mobile application are owned or operated by Artiphon, Inc. and/or its subsidiaries or affiliates (collectively, referred to herein as “Artiphon,” "we," "us," or "our").

Certain content or areas of the Site, and certain features, products, services or software that you purchase or download from the Site may be subject to additional terms and conditions presented to you at the time that you use, purchase or download them. When you decide to enter a contest, sweepstakes or similar promotion or offer, we may present additional terms and conditions for the promotion or offer to you. In addition, some content or areas of the Site may be hosted or provided by our third-party host or service providers and are subject to additional terms and conditions of use, which are posted within those areas or on such third parties’ websites.

You represent that you are legally able to accept these Terms of Use and affirm that you are of legal age to form a binding contract or have obtained parental or guardian consent to do so. If you do not agree to these Terms of Use, you may not use the Site.

We reserve the right to change these Terms of Use at any time. Such changes will be effective when posted, provided that we may only amend the alternative dispute resolution, venue and time limit of claims provisions to the extent allowed by applicable law. By continuing to use the Site after we post any such changes, you accept the Terms of Use as modified.

NOTE: THESE TERMS OF USE CONTAIN A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE "BINDING ARBITRATION" SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF USE AND WITH RESPECT TO ANY "DISPUTE" (AS DEFINED BELOW) BETWEEN YOU AND US OR OUR AFFILIATES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE "BINDING ARBITRATION" SECTION BELOW.

Additional Terms
If your usage includes access to areas containing premium content or services, your access to or use of such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas, as well as the terms and conditions described in the section titled ‘Payments’ below.

Use of Our Site
Certain areas of the Site provide a place for Users to interact with other Users order products or services by such Users. However, Artiphon does not provide any such User services, and is not an agent or representative for any User. Therefore, Artiphon has no control over any User’s activity on the Site, including interactions between Users, and does not make any representations regarding the quality, accuracy or safety of any products or services being provided by a User, or the activities or transactions between Users.

You acknowledge that the Site is a neutral venue and not a broker, and you are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Artiphon shall have no liability for your interactions with other Users, or for any User’s action or inaction.

Rules of Conduct
There are rules of conduct that all Users are required to follow when using the Site. You must not:

‘harvest,’ ‘scrape’ or collect information from the Site using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the Site and information about the offerings, products, services and promotions available on or through the Site.
use unauthorized automated means to access the Site, or otherwise gain unauthorized access to the Site or to any account or computer system connected to the Site.
"stream catch" (download, store or transmit copies of streamed content).
obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you.
"flood" the Site with requests or otherwise overburden, disrupt or harm the Site or its systems (e.g., perform a Denial of Service attack).
circumvent or reverse engineer the Site or its systems (including without limitation, engage in any tactics, or direct or encourage others to engage in any tactics that attempt to circumvent the Site, its marketplace or systems to book services, events, or reservations outside of the Site, its marketplace or systems, including any tactics that are designed to avoid paying required fees to Artiphon).
restrict or inhibit another User or Users from using and enjoying the Site.‍
manipulate or forge identifiers in order to disguise the origin of any information posted on the Site or otherwise provided to us or our employees.
impersonate any person, including, but not limited to, other community members or our employees.
engage in or promote spamming, chain letters or other unsolicited communications.
provide inaccurate, misleading or false information to us.
post any content or take any action that may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, any other person or any animal.
post any content or take any action that seeks to harm or exploit children by exposing them to inappropriate content or behavior, asking for personally identifiable details or otherwise.
post any content or take any action that contains any information, content or behavior that is vulgar, sexual, obscene, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, high-pressure sales tactics, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise harmful (to Artiphon or any Users).
post any content or take any action that contains any information that you know is not correct or current.
post any content or take any action that is fraudulent, unlawful, threatening or harassing.
post any content or take any action that contains any information (such as inside, proprietary or confidential information) that you do not have a right to make available due to contract, fiduciary duty or operation of law.
post any content or take any action that advertises or solicits business for products or services other than those that are offered and promoted on the Site.
“farm” out leads (e.g., transferring user leads to non-Artiphon vendors and entities or outside the Artiphon in any way), or utilize leads sent to other Artiphon vendors but not sent to you.
post any content or take any action that contains or distributes any virus, malware, spyware or other malicious or harmful content or code.
post any content or take any other action that violates any law, rule or regulation, or contains any information or content that is illegal or encourages criminal or other unlawful conduct.
engage in any fraudulent activities, terror or money laundering activity, or any other activity which violates any policy of Artiphon (including these Terms of Use) or a Payment Processor (defined below).

You also must comply with all applicable laws and contractual obligations when you use the Site. You agree that you are not (i) located in, under the control of, or a national or resident of any country (a) subject to a United States (“U.S.”) government embargo, (b) that the U.S. government has identified as a "Specially Designated National" or “terrorist supporting” country or (c) on the U.S. Commerce Department's Table of Deny Orders, or (ii) listed on any U.S. government list of prohibited or restricted parties. Membership in, and use of, the Site is void where prohibited.

Ownership of Site Content and Submissions
We or our licensors or partners own the intellectual property rights in the content and materials displayed on the Site (“Site Content”). You may use the Site (including any Site Content) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any Site Content unless explicitly authorized in these Terms of Use or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.

If you submit or post any materials or content to the Site, you grant us and our business partners a non-exclusive, royalty free, perpetual, irrevocable, transferrable, assignable, sub-licensable, worldwide license to use such materials and content, including alterations thereof, in any form or media, and via any technology we choose, whether it exists now or is created in the future. You represent that (i) any materials and content posted or otherwise submitted by you to the Site is original to you and that you have the right to grant us these rights, (ii) the posting and use of your materials and content on or through the Site does not violate, misappropriate or infringe on the rights of any third-party, including, without limitation, privacy rights, rights of publicity, copyrights, trademark and/or other intellectual property rights, and (iii) such posts and the content contained therein abide by the Rules of Conduct set forth in these Terms of Use.

You may choose, or we may invite you, to submit comments or ideas about the Sites and our other products and services, including without limitation about how to improve the Sites or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Artiphon under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation or any other obligation to you and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your Idea, Artiphon does not waive any rights to use similar or related ideas previously known to Artiphon, developed by its employees, or obtained from sources other than you.

Responsibility for Postings and Content
Responsibility for what is posted on the Site lies with each User – you alone are responsible for the material you post or otherwise make available on the Site. You alone are responsible for assessing the credibility of other User postings. We do not control the material that you or others may post or otherwise make available in such areas, and you understand that we have no obligation to monitor any such material or to edit or delete it. However, we reserve the right to do so. We are not a publisher of user posts and we are not responsible for their accuracy or legality.

You also understand and agree that any action or inaction by us or any of our directors, officers, stockholders, employees, consultants, agents or representatives (collectively, "Our Representatives") to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential Terms of Use violation is undertaken voluntarily and in good faith, and you expressly agree that neither we nor any of Our Representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of these Terms of Use.

Although Our Representatives may moderate content, conduct and Terms of Use compliance on the Site at our discretion, Our Representatives have no authority to make binding commitments, promises or representations to anyone that they or anyone else on our behalf will "take care" of any alleged problem or complaint, or that they or anyone else on our behalf will otherwise stop, cure or prevent any problem, content, conduct or purported Terms of Use violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any of Our Representatives (or by anyone else acting on our behalf or by anyone purportedly acting on our behalf) that we (including but not limited to any of Our Representatives, anyone else acting on our behalf, or anyone purportedly acting on our behalf) would or would not prevent, restrict, redress or regulate content (including, without limitation, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or to implement other enforcement measures against any content, conduct or potential or purported Terms of Use violation is superseded by this provision and is nonbinding and unenforceable. Specifically, you agree that we, Our Representatives and anyone else authorized to act on our behalf shall in no circumstance be liable as a result of any representation that we, Our Representative or anyone else on our behalf would or would not restrict or redress any content, conduct or potential or purported Terms of Use violation. This paragraph may not be modified, waived or released except by a written agreement, dated and signed by our Chief Executive Officer and dated and signed by the individual or entity to whom the modification, waiver or release is granted.

Registration and Log-in
To access certain features or areas of the Site, you may be required to provide personal and/or demographic information as part of a registration or log-in process. In addition, certain features of the Site are only available to our registered users, and to access those areas of the Site you will be required to log in using your username and password.

You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (this includes your contact information, so that we can reliably contact you). Failure to accurately and completely provide, and timely update, information about yourself is reasonable grounds for us to suspend or terminate your account and refuse you service in the future. The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information.

You are responsible for all activity occurring when the Site is accessed through your account, whether authorized by you or not. Therefore, if you create an account, be sure to protect the confidentiality of your account password. We are not liable for any loss or damage arising from your failure to protect your password or account information.

If you are a business or other entity and experience a dissolution, merger or other significant change in personnel (e.g., sale of company), then we, in our sole discretion, have the right to determine whether to keep active, transfer or terminate your account, including all User reviews and other Site Content previously associated with such account.

Vendor Policy
If you are a vendor, by accessing the Site and agreeing to these Terms of Use, you agree that Artiphon may take certain actions, including actions related to cancellation of services, as deemed appropriate by Artiphon in its sole discretion. Such actions may include suspending you from using the Site or assessing a cancellation fee. As a vendor and/or a User, you agree that Artiphon should not be liable for any such cancellations or refunds. In addition, you agree that you will provide Artiphon upon request in its sole discretion, products and services offered by you on the Site, or such other actions deemed appropriate by Artiphon, with or without advance notice to you, at no cost to Artiphon, for any purpose (including marketing purposes) related to the Site.

Payments
Billing Policies: You are responsible for paying any and all applicable fees as set forth in any agreement entered into (i) through the Site (including for any mobile application or goods or services provided by a User to another User (a “User Provided Service”)) or (ii) if applicable, by clicking through to another digital property or mobile application (including through the Apple App Store) that requires payment, and applicable taxes associated with the Site in a timely manner with a valid payment method.

Unless we state in writing otherwise, all fees and charges are nonrefundable. Unless we state in writing otherwise, all fees are quoted in U.S. Dollars. All payments must be made by the methods specified within the Site or applicable agreement. You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete and accurate (e.g., updating any change in billing address, payment card number, and expiration date) and to notify Artiphon if your selected payment method is cancelled (e.g., for loss or theft). If you want to use a different debit or credit card, or there is a change in debit or credit card validity or expiration date, or if you believe someone has accessed the Site using your username and password without your authorization, you must follow the procedures outlined in the Help section of these Terms of Use or the Site. You are responsible for any fees or charges incurred to access the service through an Internet access provider or other third-party service. Artiphon may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms of Use.

With respect to any products or services not ordered directly from Artiphon, the applicable User (including any vendor) and not Artiphon, is responsible for delivering any and all purchased goods or providing any and all services. If you, as a User, choose to enter into a transaction with another User (including a vendor), you agree and understand that you will be required to enter into an agreement with such User and agree to any terms or conditions which may be imposed by such User. As a User, you acknowledge and agree that you, and not Artiphon, will be responsible for performing the obligations of such agreements, except as otherwise expressly set forth in these Terms of Use.

No Refunds: You may cancel your Site account at any time; however, there are no refunds for cancellation except (a) as expressly set forth herein, and/or (b) as required by applicable law. In the event that Artiphon suspends or terminates your account or these Terms of Use, you understand and agree that you shall receive no refund or exchange for any Site Content, any unused features, any license or other fees for any portion of the Sites, any content or data associated with your account or for anything else.

Charges on Your Account: You are responsible for all charges incurred under your account made by you or anyone who uses your account. If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any taxes imposed on your use of the Site or any services contained therein (including for any User Provided Service), including, but not limited to, sales, use or value-added taxes. To the extent Artiphon is obligated to collect such taxes, the applicable tax will be added to your billing account.

Authorization; Payment Processing: You expressly authorize Artiphon (including through a third-party payment processor, as described below) to debit or credit any monies from the payment method you have chosen. Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Site; provided, however, that such notice will not affect charges submitted before Artiphon could reasonably act. The vendor shall be responsible for all fees associated with the processing of the payment method, including payment processing and associated bank fees.

Payment and Third-Party Payment Processors: Payments for Site services, and, if applicable, payments for purchases made through the Site (including for any User Provided Service if offered through the Site) may be processed through a third-party payment processor, application, or other payment service provider (each, a “Payment Processor”). If applicable, you may be provided a notice when accessing the payment application or entering your payment information directing you to such Payment Processor’s terms of use and privacy policy, and all payments are governed by such terms of use and privacy policy.

Disputes, Chargebacks, and Payment Issues between Vendors and Customers: With respect to any transactions between Users or between Users and third parties using the Site, you agree to contact the User who purchased or sold the goods or services directly with all inquiries regarding such purchased goods or services. Artiphon has no obligation to handle or facilitate the handling of any disputes between Users. For avoidance of doubt, any disputes directly with Artiphon shall be handled in accordance with these Terms of Use. It is the responsibility of the vendor to issue any refunds to Users via the Sites and Users should direct all refund requests to the applicable vendor. Artzpiphon will not be responsible or liable in any way for refunds or errors in issuing refunds in connection with your use of the Sites. A User shall only initiate chargebacks or request refunds in situations where such User has a good faith belief that the charged amount is incorrect, the charge was fraudulent, or there was some other error with the billed amount (“Valid Chargeback Request”). If you violate the foregoing, Artiphon reserves the right to pursue all remedies available to it, including suspension of your access to the Site. If you initiate a chargeback request that is not a Valid Chargeback Request, and such request is accepted or processed by a credit card company or other entity, you acknowledge and agree that Artiphon may charge you for any costs associated with such invalid chargeback requests. Users will look solely to other Users (including vendors) to resolve any payment error made by such User, and Artiphon will have no liability for such errors.

Automatic Renewal (“Auto-Renew”)
To the extent Artiphon offers Users any memberships or similar features, such memberships may renew automatically for successive periods unless otherwise agreed to in writing or prohibited by applicable law. Without limiting the foregoing, if you sign up, upgrade or renew your membership, you are automatically entered into our auto-renew program unless otherwise specified in the applicable terms or agreement. This means that, unless otherwise specified in the applicable terms or agreement, we will charge your selected payment method at the start of each new membership term and during the membership term or prohibited by applicable law. In order to avoid billing of fees for the renewal term to your selected payment method, you must cancel your membership before it renews as indicated in the applicable terms or agreement.

You may cancel your membership by contacting Artiphon at support@artiphon.com. If you are enrolled in a monthly or other periodic payment plan and you decide to cancel during the membership period, you acknowledge and agree that, unless otherwise agreed in writing, you may continue to be billed on a monthly or other applicable periodic basis until your originally scheduled membership expiration date.

Coupons & Discounts
We may allow you to receive promotional coupons (“Coupons”), or other promotions or discounts (“Discounts”) that may be used to purchase goods and services from us or third parties (“Coupon Vendors”). Additional terms and conditions may be contained on each Coupon or Discount. Any violation of the terms and conditions will make the Coupon or Discount void. We are not responsible for lost or stolen Coupons. Coupons or Discounts are not redeemable for cash. Only one Coupon or Discount per redemption. A Coupon or Discount is automatically void if prohibited by law. A Coupon or Discount may not be used for alcohol, tips, taxes, and any other statutory limitations. You acknowledge and agree that we may stop (permanently or temporarily) providing the Coupons or Discounts to you or to users generally at our sole discretion, without prior notice to you.

Coupons are valid exclusively on Artiphon.com. Coupons are valid only for orders shipping to the United States, Canada, or Hong Kong. Coupons are not valid at any Artiphon resellers or distributors. Coupons and discount codes are limited to one per order. Other conditions may apply (i.e. free shipping only valid for orders of $89.99 or more)

Downloading from the Apple App Store
Without limiting anything herein or contained in any additional terms you may agree to, you agree that by using or accepting a Site downloaded through the Apple App Store or similar iOS mobile application retail portal (the “Apple App Store”) (each such Site, an “Apple Mobile Application”), you agree to be bound by the terms and conditions in this section. You acknowledge and agree that (i) the Terms of Use is concluded between you and Artiphon only, and not with Apple, and (ii) Artiphon, not Apple, is solely responsible for the Apple Mobile Application and content thereof. Your use of the Apple Mobile Application must comply with the Apple App Store Terms of Service (which, as of September 16, 2020, is set forth at here).
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You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Mobile Application. In the event of any failure of the Apple Mobile Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Apple Mobile Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Mobile Application. As between Artiphon and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Artiphon.

You acknowledge that, as between Artiphon and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Mobile Application or your possession and use of the Apple Mobile Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the Apple Mobile Application or your possession and use of Apple Mobile Application infringes that third party’s intellectual property rights, as between Artiphon and Apple, Artiphon, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.

You acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Use as related to your license of the Apple Mobile Application, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the Apple Mobile Application against you as a third-party beneficiary thereof. Without limiting any other terms of these Terms of Use, you must comply with all applicable third-party terms of agreement when using the Apple Mobile Application.

If you have any questions, complaints or claims with respect to the Apple Mobile Application, please contact us at contact@minibeats.app.

Electronic Communications
The communications between you and us via the Site use electronic means, whether you visit the Site or send us an email, or whether we post notices on the Site or communicate with you via email. For contractual purposes, you consent to receive communications from us in an electronic form and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.

Copyright Infringement Notices
If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed on the Site in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice to copyright@minibeats.app in accordance with the requirements set out at https://www.artiphon.com/copyright. We have a policy of terminating the Site usage privileges of users that are subject to repeat notices of intellectual property infringement in appropriate circumstances and at our discretion.

Changes to the Site
We reserve the right to make changes to, or to suspend or discontinue (temporarily or permanently), the Site or any portion of the Site. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.

Suspension or Termination of Access
We have the right to deny access to, and to suspend or terminate your access to, the Site, or to any features or portions of the Site, and to remove and discard any content or materials you have submitted to the Site, at any time and for any reason, including for any violation by you of these Terms of Use (including the Rules of Conduct). In the event that we suspend or terminate your access to and/or use of the Site, you will continue to be bound by the Terms of Use that were in effect as of the date of your suspension or termination.

Linking Policies
The Site may contain links to other websites or to third-party sellers of products and services. Such links are provided for your convenience only, and you access them at your own risk. We are not responsible for, and do not endorse, the content of any such sites, or the products and services sold on them, nor do we take responsibility for the accuracy of any such sites. When you visit a linked site, you should read the terms of use and privacy policy that govern that particular linked site.

Indemnification
You agree to indemnify, defend and hold us and our affiliates, and our respective directors, officers, employees and agents, harmless from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees, arising from or relating to your misuse or unauthorized use of the Site (including any User Provided Service), your submissions to the Site, or any violation of these Terms of Use, or applicable law, by you or by someone accessing the Site via your account. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defense and hold harmless obligation will survive these Terms of Use and the termination of your use of the Site.

Jurisdictional Issues
We control and operate the Site from our facilities in the United States of America and, unless otherwise specified, the materials displayed on the Site are presented solely for the purpose of promoting products and services available in the United States, its territories, possessions and protectorates, to the extent permitted under applicable law. Use of the Site is void where prohibited by applicable law, and the right to access the Site is revoked in such jurisdictions. We do not represent that materials on the Site are appropriate or available for use in other locations; any use outside of the U.S. or use related to activities outside of the U.S. is prohibited and at the user’s own risk. Users are responsible for compliance with any and all local, State or federal laws applicable to their use of the Site and the products and services offered on the Site.

Applicable Law; No Waiver; Severability
These Terms of Use, and the relationship between you and us, will be governed by the laws of the United States and the State of Tennessee, without giving effect to any principles of conflicts of law. Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions reflected in such provision, and the other provisions of these Terms of Use will remain in full force and effect.

Binding Arbitration
Other than those matters described under ‘Exclusions from Arbitration’ below, you and we agree that all disputes, claims, or controversies arising out of or relating in any way to these Terms of Use (including the validity, enforceability or scope of this Section), the Site or any content or services thereon (each, a "Dispute"), that cannot be resolved through negotiation in accordance with the ‘Notice of Dispute; Negotiation’ clause below, shall be settled by final binding arbitration, in accordance with the terms of this Section and to the extent permitted by law. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury. An arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. You agree that the U.S. Federal Arbitration Act applies to this agreement.

Exclusions from Arbitration
YOU AND WE AGREE THAT ANY CLAIM FILED BY EITHER PARTY IN SMALL CLAIMS COURT IS NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION (so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis). WE ALSO BOTH AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.

RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER

IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO ARTIPHON, INC., ATTENTION: CEO, 1305 Clinton St., Suite 200, Nashville, TN 37203, BY CERTIFIED MAIL RETURN RECEIPT REQUESTED AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR ACCOUNT INFORMATION, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.

Notice of Dispute; Negotiation

IF YOU HAVE A DISPUTE WITH US, YOU MUST SEND WRITTEN NOTICE TO ARTIPHON, INC., ATTENTION: CEO, AT THE ADDRESS ABOVE TO GIVE US THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION.

You agree to negotiate resolution of the Dispute in good faith for no less than sixty (60) days after you provide notice of the Dispute. If we do not resolve your Dispute within sixty (60) days from receipt of notice of the Dispute, either party may pursue a claim in arbitration pursuant to the terms of this Section.

Initiation of Arbitration Proceeding
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, User must send a letter requesting arbitration and describing User’s claim to Artiphon, Inc., Attention: CEO, 1305 Clinton St., Suite 200, Nashville, TN 37203. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.

Qualifying Disputes will be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com. If JAMS is not available to arbitrate, the parties shall select an alternative arbitral forum.

Judgment on any award rendered in any arbitration may be entered in any court having jurisdiction. The arbitration will be conducted in English.You and we agree to treat the arbitration proceedings and any related discovery confidential. The terms of this Section govern in the event they conflict with the rules of JAMS.

Location of Arbitration
The arbitration proceedings shall be held in Nashville, Tennessee, unless you can demonstrate that arbitration in Davidson County (Nashville) would create an undue burden to you. If you can demonstrate that arbitration in Davidson County (Nashville) would create an undue burden to you, we may allow you to initiate the arbitration in your home state.

Class Action Waiver
YOU AND WE 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 OR PROCEEDING. UNLESS BOTH YOU AND WE SPECIFICALLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SITE USERS.

Severability
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, the Dispute will be decided by a court, and you and we each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.

Continuation
These Terms of Use shall survive any termination of the provision of the associated services to you.

Governing Jurisdiction
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE OR, IF SUCH COURT WOULD NOT HAVE JURISDICTION OVER THE MATTER, THEN ONLY IN A TENNESSEE STATE COURT SITTING IN THE CITY OF NASHVILLE. EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THESE COURTS AND AGREES NOT TO COMMENCE ANY LEGAL ACTION UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS OF USE IN ANY OTHER COURT OR FORUM. EACH PARTY WAIVES ANY OBJECTION TO THE LAYING OF THE VENUE OF ANY LEGAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS OF USE IN THE FEDERAL OR STATE COURTS SITTING IN THE CITY OF NASHVILLE, TENNESSEE, AND AGREES NOT TO PLEAD OR CLAIM IN SUCH COURTS THAT ANY SUCH ACTION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Disclaimer of Warranties
THE SITE AND ITS CONTENT AND ANY SERVICES PROVIDED THEREIN ARE PROVIDED FOR ENTERTAINMENT, EDUCATIONAL AND PROMOTIONAL PURPOSES. WE PROVIDE THE SITE, ITS CONTENT AND ANY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SAMPLE PROVIDED, DISPLAYED OR GENERATED, ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS THAT WE MAKE NO PROMISES THAT:

THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME,
THE SITE WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
THE INFORMATION ON THE SITE (INCLUDING PRICING) WILL BE ACCURATE OR UP-TO-DATE,
THE SITE OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE SITE WILL REMAIN RETRIEVABLE AND UNCORRUPTED, OR
THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.

YOU AGREE THAT USE OF THE SITE IS AT YOUR OWN RISK. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SITE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN ANY LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO THE SITE BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.

THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES, AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE SITE, AND ANY OF THEIR EMPLOYEES AND AGENTS.

EXCEPT AS EXPRESSLY PROVIDED IN OUR REFUND/LIMITED WARRANTY POLICY FOR ARTIPHON PRODUCTS, WE LIKEWISE MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITE. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SITE ARE PROVIDED "AS IS", EXCEPT TO THE EXTENT, IF AT ALL, PROVIDED IN OUR REFUND/LIMITED WARRANTY POLICY FOR ARTIPHON PRODUCTS, IF APPLICABLE, OR AS OTHERWISE EXPRESSLY SET FORTH IN A SEPARATE AGREEMENT ENTERED INTO BETWEEN YOU AND US OR BETWEEN YOU AND A THIRD PARTY.

IF YOU PURCHASE A PRODUCT OR SERVICE FROM A THIRD PARTY AFTER FOLLOWING AN AD OR LINK ON THE SITE, OR FROM ANOTHER USER ON THE SITE, THE TERMS OF SALE FOR YOUR PURCHASE ARE BETWEEN YOU AND THE THIRD PARTY FROM WHOM YOU MADE THE PURCHASE. WE ARE NOT RESPONSIBLE FOR SUCH THIRD-PARTY PRODUCTS OR SERVICES OR FOR DISPUTES BETWEEN YOU AND THEIR SELLERS.

YOU AGREE THAT USE OF THE SITE IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SITE IS ACCURATE AND UP TO DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SITE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO THE SITE BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.

SOME JURISDICTIONS, INCLUDING NEW JERSEY, HAVE LAWS THAT MAY APPLY TO PRODUCTS AND SERVICES OFFERED ON THE SITE AND THAT DO NOT ALLOW CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. TO THE EXTENT THAT A LIMITATION, EXCLUSION, RESTRICTION OR OTHER PROVISION SET OUT HEREIN IS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SUCH LIMITATION, EXCLUSION, RESTRICTION OR PROVISION MAY NOT APPLY TO YOU.

Limitations of Liability
IF YOU ARE DISSATISFIED WITH THE SITE, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THE SITE, OR WITH ANY OF THE SITE'S TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

IN NO EVENT WILL WE OR ANY OF OUR SUBSIDIARIES OR OTHER AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITE (OR THE CONTENT, MATERIALS AND FUNCTIONS PROVIDED AS PART OF THE SITE), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF WE KNEW, SHOULD HAVE KNOWN OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING AND WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OF ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY RELATING TO THE USE OF THE SITE, WILL NOT EXCEED THE LESSER OF THE AMOUNT YOU HAVE ACTUALLY PAID TO US, IF ANY, FOR USE OF THE SITE, OR, IF APPLICABLE, FOR USE OF THE SPECIFIC SITE FEATURE OR SERVICE FROM WHICH THE CLAIM IN QUESTION FIRST AROSE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR $100, NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

If you are a California resident, you waive California Civil Code §1542, which states that “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.” For avoidance of doubt, any disputes directly with us shall be handled in accordance with these Terms.

FOR THOSE JURISDICTIONS THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL, RECKLESS MISCONDUCT, OR GROSS NEGLIGENCE OF THE COMPANY.

TERMS OF SERVICE