This Service Agreement was last updated on October 25, 2013
Gaincode, Ltd. Service Agreement
This Terms of Service Agreement (this “Agreement”) explains the terms and conditions that apply to your use of the Gaincode Service (described below) and constitutes a legally binding agreement between you and Gaincode, Inc. (“Gaincode”, “we”, “us” or “our”). By accepting this Agreement or using the Gaincode Service, you acknowledge that you have read, understood, and agree to be bound by all the terms and conditions in this agreement (“Agreement”). If you do not agree with this Agreement, you must not accept this Agreement and may not use the Gaincode Service.
1. Terms Of Service
We may at our discretion change the terms of this Agreement and will post a copy of the amended Agreement on the Site (as described below). Such changes shall be effective upon posting by us, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If you do not agree to, or cannot comply with the Agreement, as amended, then you must stop using Gaincode Service. We encourage you to check www.gaincode.com/policies frequently.
2. The Gaincode Service
The “Gaincode Service” consists of (a) the website located at www.gaincode.com (the “Site”), (b) all software (including the Software, as defined below), data, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”), (c) our applications and (d) any updates, additional features and functionality that Gaincode may offer.
3. Changes To Your Gaincode Service
Gaincode may at its discretion and from time to time change, add or remove features and functionality of the Gaincode Service without notice. Gaincode reserves the right to discontinue some or all of the features of the Gaincode Service at any time at its discretion (including the provision of updates). Additionally, a given Gaincode subscription may support different features and functionality, and Gaincode is under no obligation to provide all features and functionality with your subscription. You agree that Gaincode shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Gaincode Service.
5. Registration and Account
6. Using The Gaincode Service
The Gaincode Service is provided only for your personal, non-commercial use. You may not transfer the Gaincode Service to a third party.You agree you will not:
- sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Gaincode Service available to any third party, in whole or in part;
- use the Gaincode Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Gaincode Service or its components;
- modify, adapt, circumvent or hack the Gaincode Service to, or otherwise attempt to gain unauthorized access to the Gaincode Service or its related systems or networks; or
- use the Gaincode Service in any way that violates this Agreement.
You agree you will comply with any codes of conduct, policies or other notices Gaincode provides you or publishes in connection with the Gaincode Service, and you shall promptly notify Gaincode if you learn of a security breach related to the Gaincode Service. You agree and warrant that you will comply with all laws, rules and regulations in connection with your use of the Gaincode Service (including, but not limited to traffic laws and rules when using the Gaincode Service in a vehicle), and you will not use the Gaincode Service in any manner that violates such laws, rules or regulations.
7. Mobile Services and other Requirements
The Gaincode Service includes certain services that are available via a mobile device, including (i) the ability to browse the Gaincode Service from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Gaincode Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.In addition, you will be responsible for providing any other the equipment, hardware, software and services necessary to use the Gaincode Service.
To the extent the Gaincode Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide Gaincode information regarding your credit card or other payment instrument. You represent and warrant to Gaincode that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Gaincode the amount that is specified in the payment plan in accordance with the terms of such plan and this Agreement. You hereby authorize Gaincode to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Gaincode know within sixty (60) days after the date that Gaincode invoices you. We reserve the right to change Gaincode’s prices. If Gaincode does, Gaincode will provide notice of the change on the Gaincode website or in email to you, at Gaincode’s option, at least 30 days before the change is to take effect. Your continued use of the Gaincode Service after the price change becomes effective constitutes your agreement to pay the changed amount.
9. We Don’t Control the Nature Of Media
The Gaincode Service gives you the ability to listen to and time-shift broadcast media programs over which Gaincode exercises no editorial or programming control, and the Gaincode Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (“Third Party Content”). You understand that (a) Gaincode does not guarantee the access to, recording, or viewing of any particular Third Party Content, (b) Third Party Content is not under Gaincode’s control and Gaincode is not responsible for and does not endorse such Third Party Content, (c) media broadcasters may change Third Party Content or schedules at any time, and (d) Gaincode is not responsible for and has no editorial control over any Third Party Content or the distribution thereof. You agree that Gaincode will have no liability to you or any third party with regard to any Third Party Content.
10. Media Programming Is Copyrighted and Protected
You acknowledge and agree that Third Party Content is the copyrighted material of the third party that supplies it, is protected by U.S. copyright law and other applicable laws, and may not be reproduced, used to prepare derivative works, distributed, performed publicly or displayed publicly without the written permission of the third party that supplied it, except as permitted by applicable law.Third Party Content may be transmitted with a variety of copy protection mechanisms. These copy protection mechanisms are designed to protect the copyright interests of the relevant third party. These copy protection mechanisms may limit or prevent the ability of your Gaincode Recorder to play Third Party Content or to record such Third Party Content for later listening. You understand that Gaincode does not control the decision of a third party to institute such copy protection mechanisms. You agree that Gaincode will have no liability to you or any third party with regard to the failure of your Gaincode Recorder to listen or record for later listening any Third Party Content due to a copy protection mechanism.
11. Advertisements, Sponsorships, Promotions and Other Partnerships
Gaincode may display advertisements for the goods and services of third parties or other promotional materials on the Site or via the Gaincode Service. Your dealings with, or participation in promotions of any third-party advertisers via the Gaincode Service are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. Gaincode does not endorse or represent such third parties and is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Gaincode Service.The Gaincode Service may also present links to third-party web sites or third-party services not owned or operated by us. We do not endorse or represent such third parties and we are not responsible for the availability of these third-party sites or services or their content. You agree that we are not responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as a result of your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service. Portions of the content are copyright © of Last.fm or its providers.
12. Eligible Users
You must be at least 18 years of age to use the Gaincode Service. Children over the age of 13 may use the Gaincode Service only if their parent or legal guardian accepts and agrees to the terms and conditions of this Agreement on their behalf and thereby assumes full responsibility for the child’s use of the Gaincode Service.
13. Special Notice for International Use
No Software may be downloaded from the Gaincode Service or otherwise exported or re-exported in violation of BVI export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Gaincode Service, including as it concerns online conduct and acceptable content.
14. Your Content and Code of Conduct
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Gaincode Service (“Your Content”).You agree to not use the Gaincode Service to post, email or otherwise transmit or provide links to any content that:
- is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable;
- you do not have a right to transmit under any law or under contractual or fiduciary relationships; poses or creates a privacy or security risk to any person;
- infringes any intellectual property or other proprietary rights of any party;
- misrepresents who you are or misrepresents your affiliation with another person or entity if the intent is to mislead, deceive or defraud others;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- in the sole judgment of Gaincode, is objectionable or which restricts or inhibits any other person from using or enjoying the Gaincode Service, or which may expose Gaincode or its users to any harm or liability of any type.
By posting Your Content on or through the Gaincode Service, you hereby do and shall grant Gaincode a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Gaincode Service. Gaincode has the right, but not the obligation, to monitor the Gaincode Service, Content, or Your Content. You acknowledge that Gaincode may establish general practices and limits concerning use of the Gaincode Service, including without limitation the maximum period of time that Your Content, data or other content will be retained by the Gaincode Service and the maximum storage space that will be allotted on Gaincode’s servers on your behalf. You acknowledge and agree that Gaincode may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Gaincode, its users and the public.
You understand that the operation of the Gaincode Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Gaincode’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Gaincode Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Gaincode will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
16. Termination Of Service
You may terminate your account, this Agreement, and your right to use the Gaincode Service, at any time and for any reason or no reason, by contacting Gaincode Customer Support at firstname.lastname@example.org
. Notwithstanding anything to the contrary in this Agreement, Gaincode retains the right to immediately suspend or terminate your account if you breach any provision in this Agreement. In addition, Gaincode reserves the right to terminate your account and this Agreement for any other reason or no reason, with or without notice to you. All of Your Content on the Gaincode Service (if any) may be permanently deleted by Gaincode upon any termination of your account in its sole discretion. If Gaincode terminates your account without cause and you have signed up for a fee-bearing service, Gaincode will refund the pro-rated, unearned portion of any amount that you have prepaid to Gaincode for such service. However, all accrued rights to payment and the terms of Section 13-25 shall survive termination of this Agreement.
17. License Grant and Intellectual Property
You may be required to use certain software programs to use or have full access to certain features of the Gaincode Service. Any software that may be made available by Gaincode in connection with the Gaincode Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.Subject to the terms and conditions of this Agreement, Gaincode hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on devices solely in connection with your personal non-commercial use of the Gaincode Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. Your use of the Software is subject to the terms of this Agreement. As between you and Gaincode, Gaincode retains title to and ownership of the Software, Gaincode copyrights and trademarks, and all Content provided or made available in connection with the Gaincode Service. In the case of any third party software provided to you by Gaincode, the applicable third party retains title to and ownership of its software and intellectual property rights. You acknowledge and agree that the Gaincode Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Gaincode, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Gaincode Service or the Service Content, in whole or in part, except that the foregoing does not apply to Your Content (as defined above) that you legally upload to the Gaincode Service. In connection with your use of the Gaincode Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Gaincode.
You agree to defend, indemnify and hold harmless Gaincode from and against any and all claims, proceedings, injuries, liabilities, losses, costs and expenses (including reasonable attorney’s fees) relating to or arising out of your breach of any term of this Agreement, Your Content, or your use, access or misuse of the Gaincode Service. Gaincode shall provide notice to you of any such claim, suit or demand. Gaincode reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Gaincode’s defense of such matter.
19. Representations and Warranties
You represent and warrant to Gaincode that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Gaincode to perform its obligations) in connection with the Gaincode Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Gaincode Service, and Gaincode’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
20. Warranty Disclaimer
YOU UNDERSTAND AND AGREE THAT THE GAINCODE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GAINCODE MAKES NO WARRANTY THAT THE GAINCODE SERVICE WILL MEET YOUR REQUIREMENTS, ALLOW YOU TO ACCESS ANY PARTICULAR PROGRAMMING, OR THAT YOUR USE OF THE GAINCODE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE; NOR DOES GAINCODE MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE GAINCODE SERVICE (INCLUDING THIRD PARTY CONTENT), THAT ANY DEFECTS IN THE GAINCODE SERVICE WILL BE CORRECTED OR THAT THE SOFTWARE OR GAINCODE SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. GAINCODE SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT THE GAINCODE SERVICE, THE SOFTWARE, OR OTHER HARDWARE. GAINCODE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE GAINCODE SERVICE OR THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU. IN THESE STATES, GAINCODE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
21. Limitations of Gaincode’s Liability
IN NO EVENT AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL GAINCODE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF USER INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE GAINCODE SERVICE OR USE OF THE GAINCODE SERVICE THROUGH YOUR ACCOUNT BY A THIRD PARTY, EVEN IF GAINCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL GAINCODE’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AGGREGATE AMOUNT YOU PAID TO GAINCODE IN THE PRECEDING TWELVE MONTHS OR, IF GREATER, ONE HUNDRED DOLLARS ($100). YOU UNDERSTAND THAT THESE LIMITATIONS OF GAINCODE’S AND GAINCODE’S SUPPLIERS’ LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Gaincode will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Gaincode’s Copyright Agent at email@example.com
(subject line: “DMCA” Takedown Request”).Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, gaincode will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at gaincode’s sole discretion. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, gaincode has adopted a policy of terminating, in appropriate circumstances and at gaincode ‘s sole discretion, members who are deemed to be repeat infringers. gaincode may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
This Agreement will be governed by the laws of the British Virgin Islands. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You agree to submit to the exclusive personal jurisdiction of the courts located within the British Virgin Islands. If any provision of this Agreement is invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable and the other provisions of this Agreement will remain in full force and effect. In the event of any dispute concerning the construction or meaning of this Agreement, reference shall be made only to this Agreement as written in English and not to any translation into another language. You may not assign this Agreement without the prior written consent of Gaincode, but Gaincode may assign or transfer this Agreement, in whole or in part, without restriction. This document represents the entire agreement governing your use of the Gaincode Service and supersedes any prior or contemporaneous written or oral statements by Gaincode or its representatives or resellers. Gaincode’s failure to enforce any of the terms of this Agreement shall not constitute a waiver or relinquishment of Gaincode’s right to do so at any time. You acknowledge and agree that Apple, Inc. (“Apple”) and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that Apple will have the right to enforce this Agreement against you as a third party beneficiary thereof. BY USING THE GAINCODE SERVICE, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT AND YOU AGREE TO ALL THE TERMS OF THIS AGREEMENT AS STATED HEREIN.
24. English language version shall control
The English language version of this Agreement is the version that governs your use of the Gaincode Service and in the event of any conflict between the English language version and a translated version, the English language version will control.
25. Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org
to report any violations of this Agreement or to pose any questions regarding this Agreement or the Gaincode Service.