7th of May 2018
To download and use the Application, (i) You must not be a minor or, (ii) if You are a minor, You must be at least 16 years old and have Your account created and registered for You by Your parent or guardian or have received permission from a parent or legal guardian to enter into this Agreement and to download and use the Application after You have reviewed the terms and conditions of this Agreement with him or her and discussed any questions that You may have. This Agreement will be void and without effect, and You will not be entitled to use the Application if You do not satisfy these requirements. By continuing with the installation process, You represent that You are of majority age or, if you are a minor, that Your account was created and registered by Your parent or guardian or that You have received Your parent(s) or legal guardian’s permission to download and use the Application under the terms and conditions of this Agreement and Your parent or legal guardian has joined You in executing this Agreement. Further, if You are a parent who is registering for a child, You hereby agree to bind Your child to these terms and to fully indemnify and hold harmless “SOUNDBIRTH” if Your child breaches or disaffirms this Agreement.
1. ACCESS AND PRIVACY
When providing information to receive access to download the Application or to register for an account on the Services from the Application, You must provide, maintain and update true, accurate, current and complete information. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify SOUNDBIRTH of any unauthorized use of your username, password or any other account information, or any other breach of security that you become aware of involving or relating to the Application. Subject to applicable law, we may suspend or terminate your account and your ability to use the Application or services offered on the Application, for your failure to comply with any term of this Agreement, or for any other reason whatsoever in SOUNDBIRTH’s sole discretion.
3. LICENSE TO DOWNLOAD AND USE THE APPLICATION
(b) License Restrictions. You may not, nor permit any third party to: (i) download or use the Application on any device other than the Participant Device, (ii) rent, lease, loan, sell, sublicense, distribute, disclose or otherwise transfer the Application, or any copy thereof, (iii), alter, merge, edit, modify, translate, adapt in any way or prepare any derivative work based upon the Application, (iv) reverse engineer, alter, modify, disassemble, decompile or otherwise derive any source code from the Application, or any part thereof, without SOUNDBIRTH’s prior written consent, (v) use the Application for the benefit of a third party.
(c) You agree not to use the Application for any commercial use, without the prior written authorization of SOUNDBIRTH, except as expressly specified in this Agreement. Prohibited commercial uses include any of the following actions taken without SOUNDBIRTH’s express approval: (i) sale of access to the Application or the services offered on the Application on another website; (ii) use of the Application or the services offered on the Application for the primary purpose of gaining advertising or subscription revenue, or (iii) the sale of advertising, on the Site or any third-party website, targeted to the SOUNDBIRTH Content or SOUNDBIRTH Community Member Content (both as defined below).
4. YOUR CONTENT
(a) Definitions. “Content” includes videos, files, images, photos, sounds, musical works, text and any other materials or information. “Your Content” includes any Content provided by You to SOUNDBIRTH or other users that is transmitted through Your use of the Application.
(b) Ownership of Your Content. You represent, warrant and covenant that: (i) you own or otherwise have the right to grant the licenses set forth in this Agreement for Your Content, (ii) you have obtained, and will maintain, all appropriate licenses, releases, consents, permissions and clearances to enable SOUNDBIRTH to exercise the rights granted herein and (iii) Your Content does not infringe, misappropriate or violate the privacy rights, publicity rights, intellectual property rights, or any other rights of any person or entity or violate any applicable laws, rules or regulations, and that Your Content You transmit through the Application and post on or through the Application will not contain third party copyrighted material or material that is subject to other third party proprietary rights unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant the license rights set forth herein. You have full responsibility for Your Content, including its legality, accuracy, appropriateness, and trademark and copyright ownership. YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO YOUR CONTENT THAT YOU SUBMIT TO SOUNDBIRTH AND/OR THROUGH THE APPLICATION.
(c) License to SOUNDBIRTH. By using the Application and/or services offered on the services, you hereby grant to SOUNDBIRTH a non-exclusive, worldwide, perpetual, irrevocable, fully-paid and royalty-free license, sub-licensable (with the right to sublicense through multiple tiers of licensees) and transferable (in any media formats and through any media channels, whether known or not currently known and invented) license to use, re-format, create backup copies, modify, reproduce, create derivative works of, syndicate, sell, license, print, sublicense, distribute, publicly display, publicly perform, derive remuneration from, and otherwise exploit Your Content in whole or in part, (including, without limitation, all patent, trademark, copyright or proprietary rights in and to such Your Content) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content, including, without limitation, making Your Content available and to include Your Content in SOUNDBIRTH’s promotional and marketing materials. You agree that SOUNDBIRTH may exercise the License granted by You without notice, payment or attribution to You. You understand that SOUNDBIRTH does not guarantee any confidentiality with respect to any Your Content that You submit. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not SOUNDBIRTH, are responsible for all of Your Content that you make available on or in the Site, the Application, or the related services, whether publicly posted or privately transmitted. You agree that SOUNDBIRTH is not obligated to make any of Your Content or any other user’s Content available on the Application.
(d) No Back Up of Content. SOUNDBIRTH encourages You to maintain Your own backup of any Your Content that You submit through the Application. SOUNDBIRTH is not a backup service, and SOUNDBIRTH will not be liable for any loss of, modification, suspension or discontinuation of any Content offered on or through the Site, the Application, or the related services including, without limitation, Your Content.
5. PERSONAL RESPONSIBILITY; ACCOUNT TERMINATION POLICY; INDEMNITY
(a) Personal Responsibility. You understand that deciding whether to use the Application and services offered on the Application and/or to submit any of Your Content through the Application is Your personal decision for which You alone are responsible. You understand that SOUNDBIRTH does not and cannot make representations, promises or warranties as to the suitability of any individual You may decide to interact with on the Application and/or the suitability, quality, accuracy, timeliness, legality of any Content on the Application that You may decide to use and/or any feedback and/or results provided by any other user of the Application or services offered on the Application. You understand and acknowledge that You may be exposed to Content through the Application that may be inaccurate or objectionable. You hereby waive any and all legal claims against SOUNDBIRTH in connection with the Application, the Site and/or any Content or services provided by or to You through the Application and services offered on the Application. We rely on each user to undertake necessary precautions and practices and use caution and common sense when using the Application, and/or any Content or services offered on or through the Application.
(b) Account Termination Policy. SOUNDBIRTH will terminate Your access to, or ability to post Your Content through the Application if You are determined to be a repeat infringer of the intellectual property rights or any other rights of others. SOUNDBIRTH reserves the right to decide whether Your Content violates the terms and conditions of this Agreement for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length.
(c) Indemnity. You agree to defend, indemnify, and hold SOUNDBIRTH harmless from and against any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising from: (i) Your use of and access to the Application; (ii) Your breach of this Agreement; (iii) Your Photograph Content; (iv) Your violation of any third party right, including, without limitation, any copyright, property, or privacy right; (v) Your violation of any applicable local, state, federal, national or international law, rule or regulation. This defense and indemnification will survive this Agreement and Your use of the Application.
6. USER CONDUCT; NO ENDORSEMENT AND REMOVAL OF YOUR CONTENT
(b) No Endorsement and Removal of Your Content. You acknowledge and agree that SOUNDBIRTH neither endorses the contents of any user communications or Your Content (as defined below), nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights or violation of any other third party rights arising there from (including, without limitation, rights of privacy and rights of publicity) or any crime facilitated thereby. SOUNDBIRTH does not knowingly permit copyright infringing activities and infringement of intellectual property rights on the Application and the services offered on the Application. SOUNDBIRTH reserves the right but has no obligation to investigate and take action in its sole discretion against You if You violate this provision or any other provision of this Agreement, including without limitation, reporting You to law enforcement authorities, and taking legal action against You. SOUNDBIRTH does not and cannot review all Content posted by You or other users of the Application and the services on the Application. The foregoing prohibitions do not require SOUNDBIRTH to monitor, police or remove any of Your Content or other information, material or content submitted by You or any other user. SOUNDBIRTH reserves the right to retain a copy of any Content in order to comply with applicable law, resolve disputes, enforce this Agreement and to take any other actions otherwise permitted by law that SOUNDBIRTH deems necessary in its sole discretion.
7. COPYRIGHT AND TRADEMARK INFRINGEMENTS
Notification. SOUNDBIRTH respects the intellectual property rights of others, and ask You to do the same. SOUNDBIRTH may, in appropriate circumstances and at our discretion, terminate service and/or access to the Application for users who infringe the intellectual property rights of others. If you believe that Your work is the subject of copyright infringement and/or trademark infringement, please contact us: firstname.lastname@example.org
Only the intellectual property rights owner is permitted to report potentially infringing items through SOUNDBIRTH’s reporting system set forth above. If you are not the intellectual property rights owner, you should contact the intellectual property rights owner and they can choose whether to use the procedures set forth above.
The Application, the SOUNDBIRTH Content, and any services offered on the Application are proprietary to and the property of SOUNDBIRTH SAS. All intellectual property rights in or associated with the Application, the SOUNDBIRTH Content and any services offered on the SOUNDBIRTH are and will remain exclusively owned by SOUNDBIRTH SAS. You agree to secure and protect the Application, the SOUNDBIRTH Content and any services offered on the Application in a manner that will maintain and protect SOUNDBIRTH’s rights in the Application, the SOUNDBIRTH Content and any services offered on the Application. You shall do nothing inconsistent with SOUNDBIRTH’s ownership rights in the Application, the SOUNDBIRTH Content and any services offered on the Application. You agree to take all reasonable steps to protect the Application, the SOUNDBIRTH Content and any services offered on the Application from loss or damage while in Your possession or under Your control or use.
To the extent that you provide SOUNDBIRTH with any suggestions, information, ideas, or feedback concerning the Application, including, without limitation, through e-mails, comments or postings (collectively, “Feedback”), the Feedback will be the sole and exclusive property of SOUNDBIRTH. You agree to assign and hereby assign to SOUNDBIRTH all right, title and interest worldwide in and to the Feedback, and all related intellectual property rights, and you agree to assist SOUNDBIRTH in perfecting and enforcing such rights.
10. NO WARRANTY
(a) SOUNDBIRTH does not proof, edit or change any of the Content on the Site, including, without limitation, any of Your Content or any SOUNDBIRTH Community Member Content. SOUNDBIRTH has no obligation to correct any (a) unfinished photograph/video content or any other errors or mistakes in any Content; (b) low resolution images that may appear blurry; (c) editing or design issues, including formatting, organization, style or color; or (d) other creative choices that You make. SOUNDBIRTH is not responsible for any incorrect or inaccurate Content (including, without limitation, any of Your Content or any SOUNDBIRTH Community Member Content) transmitted through the Application, whether such inaccuracies are caused by SOUNDBIRTH, the Application, or the users of any of the foregoing or by any of the equipment or programming associated with or utilized in connection with providing the Application and the services offered on the Application. SOUNDBIRTH assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Content submitted by users. SOUNDBIRTH is not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet or at the Application and/or combination thereof, including any injury or damage to users’ or to any person’s Personal Device or other computer or equipment related to or resulting from participation or downloading the Application or using any other Content or services offered on the Application. Under no circumstances shall SOUNDBIRTH be responsible for any loss or damage, including personal injury or death or property damage, resulting from use of the Application, or the services offered on the Application or from any Content posted on the Application or transmitted by or to users, or any interactions between users of the Application, whether online or offline.
(b) THE APPLICATION, THE SERVICES OFFERED ON THE APPLICATION AND ALL CONTENT, INCLUDING, WITHOUT LIMITATION, SOUNDBIRTH CONTENT AND SOUNDBIRTH COMMUNITY MEMBER CONTENT, IS PROVIDED “AS IS” AND SOUNDBIRTH MAKES NO WARRANTY OF ANY KIND REGARDING ANY OF THE FOREGOING. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, SOUNDBIRTH HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOUNDBIRTH DOES NOT WARRANT THAT THE APPLICATION, THE SERVICES OFFERED ON THE APPLICATION OR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, SOUNDBIRTH CONTENT AND SOUNDBIRTH COMMUNITY MEMBER CONTENT, WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION OR ANY SERVICES OFFERED ON THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR ANY SERVICES OFFERED ON THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOUNDBIRTH OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY
(a) SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, IN NO EVENT SHALL SOUNDBIRTH BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE APPLICATION OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF USE OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, THE APPLICATION, OR ANY CONTENT OR SERVICES OFFERED ON THE APPLICATION, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APPLICATION, OR ANY CONTENT OR SERVICES OFFERED ON THE APPLICATION OR ANY OTHER PERSON OR ENTITY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SOUNDBIRTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT SOUNDBIRTH SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(b) ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL SOUNDBIRTH BE HELD RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED TO YOU IN CONNECTION WITH THE USE OF OR RELIANCE ON THE APPLICATION, OR ANY CONTENT OR SERVICES OFFERED ON THE APPLICATION.
12. SYSTEM OUTAGES AND CHANGES TO SERVICES
You acknowledge and agree there will be occasions when the Application, and/or the services offered on the Application will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of SOUNDBIRTH, and that SOUNDBIRTH will have no liability for your inability to access and/or use the Application, and/or services offered on the Application, or any portion thereof, during any of the foregoing events. SOUNDBIRTH reserves the right to change, alter or vary the Application, the services offered on the Application and/or Content offered on or through the Application at any time without notice.
You hereby release SOUNDBIRTH from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injury, death, and property damage, that is either directly or indirectly related to or arises from participation or downloading the Application, or any other Content or services in connection with the Application.
14. LINKS TO THIRD PARTY WEB SITES
The Application may provide links to or be linked to other web sites that are not SOUNDBIRTH websites (“Third Party Web Sites”) and certain functionality of the Application may allow you to conduct transactions through such Third Party Web Sites. SOUNDBIRTH is providing these links to you as a convenience, and SOUNDBIRTH does not verify, make any representations or take any responsibility for such linked to Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, links displayed or activities conducted on such Third Party Web Sites. The Third Party Web Sites may have different privacy policies and terms and conditions and business practices than SOUNDBIRTH. Your dealings and communications through the Site with any party other than SOUNDBIRTH are solely between you and such third party. Any complaints, concerns or questions you have relating to materials provided by third parties should be forwarded directly to the applicable third party. YOU AGREE THAT SOUNDBIRTH WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, RESOURCES OR CONTENT AVAILABLE THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, ADVERTISING OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference in the Application to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise does not constitute or imply SOUNDBIRTH’s endorsement or recommendation.
15. PROPRIETARY RIGHTS
SOUNDBIRTH is a trademark of SOUNDBIRTH SAS in France.
All information and screens appearing in the Application and in relation with SOUNDBIRTH, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole properties of SOUNDBIRTH, Copyright © SOUNDBIRTH SAS. Other trademarks, names and logos in the Application are the property of their respective owners. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
You acknowledge that SOUNDBIRTH controls and operates the Application from its headquarters in France and the Content may not be appropriate or available for use in other locations. If you use this Application outside France, you are responsible for following applicable local laws, rules and regulations.
18. ACCESSING AND DOWNLOADING THE APPLICATION
The following applies to any Application accessed through or downloaded from the Apple app Store and/or GooglePlay Store (“Store Sourced Application”):
(b) In the event of any failure of the Store Sourced Application to conform to any applicable warranty, you may notify the Apple app Store and/or GooglePlay Store, and the Apple app Store and/or GooglePlay Store will refund the purchase price for the Store Sourced Application to you and to the maximum extent permitted by applicable law, the Apple app Store and/or GooglePlay Store will have no other warranty obligation whatsoever with respect to the Store Sourced Application.