Last updated April 27 2018
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR” OR “YOURSELF”) AND NINEBUZZ SOFTWARE, LLC (“OUR,” “US,” “WE” OR “NINEBUZZ”), WHICH GOVERNS YOUR USE OF THE DRUM BEATS+ SERVICE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, “THE SERVICE”). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACCESSING THE SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS 13 YEARS OF AGE OR OLDER. IF YOU ARE NOT YET 13 YEARS OLD, PLEASE DISCONTINUE USING THE SERVICE IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
1. ACCESS TO THE SERVICE
Subject to certain limitations as described herein, you are granted the right to access our text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) under certain terms and conditions as set forth in this Agreement. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to access the digital Content files. Download and use of software content may be subject to an additional license agreement. You must be at least 13 years of age to enroll in the Service. You must have access to Apple iOS App Store/Google Play Store with a valid registration.
2. YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by any Service registration process (such information being the “Registration Data”). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service, as applicable. If you are already registered for the Service, you shall utilize your existing user ID and password in connection with your account (collectively referred to herein as “IDs”). If you are not already registered, you shall establish IDs. You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed. A person who completes the registration process for the Service is sometimes referred to herein as a “Registered User”. In certain circumstances, registration to Drum Beats+ may not require a registration process. You agree that by downloading and using Drum Beats+ you are consenting to these terms of service.
3. SERVICE FEES
3.1 By downloading and installing Drum Beats+, you agree to pay the fees designated for the Service level you select and in accordance with this section 3.1. Additional charges may include purchases you make or service level changes you request. Subject to your right to terminate the Service prior to the expiration of a Trial Period (defined hereinafter), if any, as described in Section 3.3 below, you agree to pay the applicable amounts for the minimum period specified therein. The term “month” (or “monthly”) is defined herein as a 30-day cycle; “quarter” (or “quarterly”) is defined herein as a 90-day cycle; “semiannual” (or “semiannually” or “6-month”) is defined as a 180-day cycle; “year” (or “annual” or “annually”) is defined as a 360-day cycle; and “biennial” (or “biennially” or “two-year”) is defined herein as a 720-day cycle. A “lifetime” subscription is valid as long as the Service is being offered. If you access the Service via the iOS platform, payment will be charged to your iTunes Account at confirmation of purchase. Likewise, if you access Drum Beats+ through Google Play Store, payment will be charged to your Google Play Account. Payment may also be due to third party merchant utilized within the application.
3.2 Your subscription will continue automatically at the fee rate applicable to the Service, which you have selected unless terminated by Ninebuzz or until you notify Ninebuzz of your decision to cancel your subscription to the Service. Additionally, you may terminate your service by following the instructions under Section 4 below. See the Section entitled “Termination / Cancellation” for cancellation instructions. At the end of your monthly, quarterly, semiannual, or annual subscription period(s), your subscription will automatically renew (the “Renewal Date”) and you will be billed for a monthly, quarterly, semiannual, annual or biennial subscription respectively at your then-current plan level, unless you elect to terminate the Service pursuant to Section 4 at the rates in effect when the charges were incurred. Please keep a record of when your subscription term ends and the next Renewal Date. Monthly or yearly subscriptions automatically renew unless auto-renew is turned off at least 24-hours before the end of the current period. The account will be charged for renewal within 24-hours before the end of the current period.
3.3 If, when registering, you signed up for a subscription with a “Trial Period,” you will be allowed a period during which you can try out the Service. Only one Trial Period is permitted per person. Certain Content may not be available for access during your Trial Period. The Trial Period will expire upon the last day of the number of days indicated in the Trial Period offer concerned (“Expiration of the Trial Period”). If you terminate the Service prior to the Expiration of the Trial Period, you will not have any further obligation with respect to the version of the Service to which you have committed and any remaining Trial Period will expire. If you do not terminate and do nothing, at the Expiration of the Trial Period, you will be automatically subscribed to the Drum Beats+ Service and billed based on the payment plan selected when you registered. A purchased subscription activates immediately and eliminates any unused portion of a free trial period.
3.4 Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder.
3.5 You release Ninebuzz from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to Ninebuzz within sixty (60) days of its first appearance on an invoice or credit card statement.
3.6 You agree to pay Ninebuzz all reasonable attorney’s fees and costs incurred by Ninebuzz to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Service account.
3.7 The fees, charges and payments hereunder do not include and you are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service on iOS or Google Play platforms. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
3.8 NINEBUZZ RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY NINEBUZZ. If any such change is unacceptable to you, you may cancel your subscription to the Service, as provided in Section 4. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
3.9 Ninebuzz iOS services are: Drum Beats+.
4. TERMINATION /CANCELLATION/ REFUNDS
4.1 If you cancel your subscription, Ninebuzz will not refund any remaining portion of your subscription fees except as expressly provided for herein. Please note that, following cancellation of your subscription to the Service, you will not be able to access the Service (“VIP” Level Access) in any manner.
- For monthly “VIP” subscriptions, you may cancel your monthly subscription anytime during the month however, you will not receive a refund for the current month’s subscription (which will remain active for the remainder of that month’s subscription term) and your payment method will not be charged for any subsequent monthly billing periods.
Your non-termination or continued use of the Service reaffirms that Ninebuzz is authorized to charge your payment method. We may submit those charges for payment and you agree you will be responsible for such charges. This does not waive our right to seek payment directly from you. This applies to iOS auto-subscriptions as well, however, all payment collection is governed by your agreement with Apple iOS App Store Terms of Service.
4.2 We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us.
4.3 Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Premium VIP Level Service shall immediately cease. Other features contained within Drum Beats+ standalone application will still be accessible to you at all times.
4.4 Auto-renewing subscriptions purchased through an iOS application can only be cancelled by following the instructions located at https://support.apple.com/en-us/HT202039. Refund requests for cancelled auto-renewing subscriptions purchased through an iOS application must be submitted to Apple Support using this link: https://support.apple.com/en-us/HT204084
4.5 Auto-renewing subscriptions purchased through an Android application can only be cancelled by following the instructions located at https://support.google.com/googleplay/answer/2476088?hl=en. Refund requests for cancelled auto-renewing subscriptions purchased through an Android application must be submitted to Google Play Support using this link: https://play.google.com/store/account.
5. USER RESTRICTIONS
5.1 Ninebuzz will make reasonable efforts to keep the Service operational. However, certain technical difficulties, routine app maintenance/upgrades and any other events outside the control of Ninebuzz may, from time to time, result in temporary service interruptions. Ninebuzz also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that Ninebuzz shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2 By using the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You agree that you will not duplicate or otherwise reproduce the Content, or any portion thereof, onto any physical medium, memory or device now known or hereinafter devised; this includes any and all copyrighted audio content (audio, loops, beats) within Drum Beats+. In addition, you agree that you will not attempt to, encourage, or assist any other person to circumvent or modify any Content protection methods. “Loops” means any musical composition consisting of audio which is integrated within Drum Beats+.
5.3 You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs. You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (x) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (y) act in a way that affects or reflects negatively on us, the Service, or anyone else; (z) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
5.4 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
5.5 In some cases, Ninebuzz derives its rights to use the Content offered on the Service from third party content owners, other than Registered Users (“Content Providers”) for fixed periods of time. As well, Ninebuzz is sometimes required to remove certain Content off the Service for legal reasons. Therefore, certain Content offered or advertised by Ninebuzz may not be available when you try to access it, and not all Content is available in all countries or territories.
5.6 You acknowledge and agree to the essential condition that the Content is provided “As Is”. Therefore, you are aware and agree that the Content might not be suitable for your purposes or satisfy your expectations or requirements with respect to it. You also acknowledge and agree that the Content could contain errors or other harmful components. Therefore, we recommend that prior to accessing the Content, you ensure, at your cost, that the Content will suit your requirements and needs and will not have any negative impact on your computer and/or your media player system/iPhone.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Content available through the Service is the property of Ninebuzz and is protected by copyright and other intellectual property laws. Content received through the Service may be accessed for your personal use only.
6.2 You acknowledge that Ninebuzz retains exclusive ownership of the Service and all intellectual property rights associated therewith. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or the Content, and Ninebuzz reserves all rights not expressly granted hereunder. You may not copy, reproduce, transfer or access (except as expressly authorized by this Agreement), re-license, reverse engineer, decompile, disassemble, translate, publish, transmit, distribute, display, broadcast, re-broadcast, redistribute, modify, create derivative works from, capture or store in any physical media, market, rent, sell, lease, sublicense, or participate in any sale of or exploit in any way, in whole or in part, directly or indirectly, the Service or any related software. You shall promptly notify Ninebuzz in writing upon your discovery of any unauthorized use or infringement of the Service or the Content or Ninebuzz patent, copyright, trade secret, trademarks or other intellectual property rights. Except as expressly provided for herein, any copy or use of any portion of the Service shall constitute an act of copyright infringement and a breach of this Agreement. Furthermore, Ninebuzz may in its sole discretion pursue any other available rights or remedies at law or in equity for a violation of this Agreement or such copyright infringement.
6.4 The Ninebuzz logos and other trademarks in Drum Beats+, or Ninebuzz owned websites, are the property of their respective owners and are owned by, licensed to, or, where required, used with permission by Ninebuzz and may not be reproduced, copied, or manipulated in any manner without the express, written approval of the trademark owner
6.5 The license you grant to Ninebuzz is non-exclusive, fully-paid and royalty-free (meaning that Ninebuzz is not required to pay you or anyone else deriving rights from you for the use on the Service.).
6.6 Ninebuzz has the right, but not the obligation, to investigate any reported or apparent violation of this Agreement, and to take any action that Ninebuzz in its sole discretion deems appropriate.
6.7 Rights Granted to Registered Users:
(a) Ownership and Reservation of Rights. Except for the Rights Granted hereunder, and subject to any third party restrictions, the respective Content Providers retain all right, title and interest in and to the Licensed Audio Compositions and nothing in this Agreement shall (or shall be construed to) restrict, impair, transfer, license, convey or otherwise alter or deprive the respective Content Providers of any of their rights or proprietary interests in any intellectual property, content, data, information or any other materials or rights, tangible or intangible. Any and all visual and audio works herein contained within Drum Beats+ remain at all times exclusive property of Ninebuzz Software, LLC.
(b) The License granted allows a user only to play audio samples and agrees that they have no access to remove actual files from Drum Beats+ for any use or modification. The user agrees that they have no authority to rent, lease, repurchase, lend, or distribute any audio loop files contained within Drum Beats+.
7. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, NINEBUZZ WEBSITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE SERVICE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS. OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NINEBUZZ SOFTWARE, LLC, ITS CONTENT PROVIDERS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT NINEBUZZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
10. CHOICE OF LAW AND CONSENT TO JURISDICTION
The Service is created, operated and controlled by Ninebuzz in the Commonwealth of Massachusetts, United States of America. The laws of the Commonwealth of Massachusetts will govern this Agreement without giving effect to any principles or conflicts of laws.
11. OBJECTIONABLE MATERIAL
You agree to use the Service at your sole risk and that Ninebuzz shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
12. INFORMATION PROVIDED
You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Service is at your sole risk. Ninebuzz reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Service, or to deny access to the Service to anyone at any time. Additionally, training materials available within Drum Beats+ (standalone or available through Premium VIP Level Membership) are provided for educational purposes only, and Ninebuzz is not liable or responsible for your use of such materials.
13. LINKS TO OTHER SITES
15. CUSTOMER SUPPORT
16. OTHER IMPORTANT PROVISIONS
16.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 17.
16.2 You shall not use the Service in any manner contrary to local, state or federal law. Ninebuzz expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such local, state or federal law.
16.3 Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
16.4 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
16.5 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
16.6 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
16.8 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.
16.9 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
17. CHANGES OR MODIFICATIONS