Phononic Terms of Service

ACCEPTANCE

Phononic, Inc. (“Phononic,” “we,” or “us”) provides certain services that are described at www.phononic.com and any subdomains thereof (the “Site”) and that are made available via the Site and via mobile applications (collectively, the “Services”) to you (“you”) subject to the terms of service set forth below (“Terms of Service”) and subject to the Phononic Privacy Policy. To access and use the Services you must agree to the Terms of Service and Privacy Policy (collectively, the “Terms”). Your use of the Services (or any part thereof) constitutes your agreement to the Terms. If you do not agree with the Terms you may not use the Services. By using the Services on behalf of any third party, you represent that you are an authorized representative of that third party and that your use of the Services represents such third party’s acceptance of the Terms.

CHANGES

We may periodically modify or supplement these Terms. If we make material changes to the Terms, we will notify you via the Services (e.g., by posting a notice on the Site or providing notice via our applications or email) indicating that the Terms have been changed. All amended Terms become effective upon the earlier of (i) your use of the Services after such revisions have been posted and (ii) seven days after such revisions have been posted. If you do not agree with any changes to the Terms, you must notify us of such disagreement and cease using the Services. We may modify the Services from time to time, including adding or deleting content or features or disabling certain aspects of the Services.

USE OF THE SERVICES

The Services are intended solely for users who are 18 years of age or older, and any registration, use, or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. By using the Services, you represent to us that you are 18 years of age or older and are legally competent to enter into and agree to these Terms. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected].

You may use the Services only for your own benefit and only in accordance with, and subject to, these Terms, including any restrictions and limitations set forth in these Terms, stated on the Site or otherwise communicated to you via the Services. In order to use the Services, you may be required to sign up for an account, and select a password and user name (“Phononic User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Phononic User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You may not share your account or password with anyone, and you must protect the security of your account and your password. You are solely responsible for any activity associated with your account. Subject to the terms and conditions of these Terms, Phononic hereby grants you a non-exclusive, limited, non-transferable license (without the right of sublicense) to use the Services in connection with devices owned by you that were purchased from Phononic and as permitted by the features of the Services. You agree to only use the Services in a manner that complies with all applicable laws that apply to you. You may not data mine, scrape, crawl, or use any robot or other automatic device, script, technology, or process that sends automated queries to the Site, or use other similar methods or tools, to gather or extract Content (as defined below) from the Services. In addition, you may not use the Services to compile data (or any other portion of the Content) in a manner that is used or usable by a competitive product or service. You may not link to the Site or any portion of the Services (including linking to a specific portion of the Services or framing Content in any way) and you may not employ script searches or search results from the Site in a manner that results in the display of any Content on a third-party website or elsewhere. You may not modify the manner in which the Services are displayed or function, including framing, scraping ,or any other technique that would alter the display of the Site or the visual display of the Services, including the Content. You may not use any device, software or routine to interfere or attempt to interfere with the proper functioning and display of the Site or the applications or the proper operation and usage of the Services by any other users or third parties. A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

The Services are intended solely for users who are 18 years of age or older, and any registration, use or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. By using the Services, you represent to us that you are 18 years of age or older and are legally competent to enter into and agree to these Terms. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected].

You may use the Services only for your own benefit and only in accordance with, and subject to, these Terms, including any restrictions and limitations set forth in these Terms, stated on the Site or otherwise communicated to you via the Services. In order to use the Services, you may be required to sign up for an account, and select a password and user name (“Phononic User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Phononic User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You may not share your account or password with anyone, and you must protect the security of your account and your password. You are solely responsible for any activity associated with your account. Subject to the terms and conditions of these Terms, Phononic hereby grants you a non-exclusive, limited, non-transferable license (without the right of sublicense) to use the Services in connection with devices owned by you that were purchased from Phononic and as permitted by the features of the Services. You agree to only use the Services only in a manner that complies with all laws that apply to you. You may not data mine, scrape, crawl, or use any robot other automatic device, script, technology or processes that send automated queries to the Site, or use other similar methods or tools, to gather or extract Content (as defined below) from the Services. In addition, you may not use the Services to compile data (or any other portion of the Content) in a manner that is used or usable by a competitive product or service. You may not link to the Site or any portion of the Services (including linking to a specific portion of the Services or framing Content in any way) and you may not employ script searches or search results from the Site in a manner that results in the display of any Content on a third-party website or elsewhere. You may not modify the manner in which the Services are displayed or function, including framing, scraping, or any other technique that would alter the display of the Site or the visual display of the Services, including the Content. You may not use any device, software, or routine to interfere or attempt to interfere with the proper functioning and display of the Site or the applications, or the proper operation and usage of the Services by any other users or third parties. A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

LINKS TO THIRD-PARTY SITES

Occasionally, we may make available a link to a third-party website. These links will let you leave the Site. The linked sites are not under our control, and we are not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. We are not responsible for webcasting or any other form of transmission received from any linked site. We provide the links to you only as a convenience. We do not endorse any such site or its use or contents.

UNSOLICITED SUBMISSIONS

We are pleased to hear from our clients and Site users and welcome your comments regarding our services, including the Site. We request that you be specific in your comments on our services and products that may be available or identified on the Site. If you send us comments, suggestions, ideas, materials, notes, drawings, concepts, or other information (collectively, “Submissions”), the Submissions shall be deemed, and shall remain, our property, and we may use, copy, display, distribute, adapt, transfer, or dispose of Submissions in any way and for any purpose as we may, in our sole discretion, determine appropriate. None of the Submissions shall be subject to any obligation of confidence on our part, and we shall not be liable for any use or disclosure of any Submissions.

INTELLECTUAL PROPERTY AND CONTENT

The Services, including the Site and the applications, as well as the design, text, graphics, images, video, information, applications, tools, software, and other content contained therein, and the arrangement thereof, including the Phononic company name and logo and all related products and service names, design marks and slogans, any inventions, techniques, methods, works of authorship, know-how, publicity rights, trademarks, trade-dress, and trade secrets (collectively, “Content”), and all intellectual property and proprietary rights related thereto, are as between you and us the sole property of Phononic. All rights in Content not expressly granted in these Terms are reserved by Phononic.

Without the prior written consent of Phononic, you shall not (i) use any Phononic name, trademark, or other branding element in any advertising, publicity, or any other commercial manner, (ii) use any meta tags or any other “hidden text” utilizing any Phononic name or branding element, (iii) use the Phononic domain name or any domain name that is confusingly similar to our domain name as a pseudonymous return e-mail address, or (iv) reproduce (except solely as required for you to use the Services for their intended purposes), alter, modify, create derivative works from, rent, lease, loan, sell, distribute, or publicly display any of the Content.

PRIVACY POLICY

Use of the Services and any personal information or other information about you collected by Phononic through, or in connection with, the Services is subject to our Privacy Policy, which is incorporated into these Terms.

APPLICATION

The following additional terms also apply to any iOS applications made available by us via the Apple, Inc. (“Apple”) App Store (the “iOS Application”):

Both you and Phononic acknowledge that the Terms are concluded between you and Phononic only, and not with Apple, and that Apple is not responsible for the iOS Application or the Content;

The iOS Application is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for your personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;

You will only use the iOS Application in connection with an Apple device that you own or control;

You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application;

In the event of any failure of the iOS Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS Application;

You acknowledge and agree that Phononic, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;

You acknowledge and agree that, in the event of any third-party claim that the iOS Application or your possession and use of the iOS Application infringes upon that third party’s intellectual property rights, Phononic, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such infringement claim to the extent required by these Terms;

You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

Both you and Phononic acknowledge and agree that, in your use of the iOS Application, you will comply with any applicable third-party terms of agreement that may affect or be affected by such use; and

Both you and Phononic acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

PAYMENT AND RELATED TERMS

Phononic offers various subscriptions to the Services, including paid subscriptions. If you elect to use paid aspects of the Services, you agree to (i) the pricing and payment terms we may provide to you in writing, or otherwise via the Services, as updated by Phononic from time to time, and (ii) provide a credit card, debit card, or other payment method acceptable to Phononic as consideration for such Services.

All financial transactions made in connection with the Services will be processed by a third party in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. We encourage you to learn about the practices of such third party. In no event will Phononic be responsible for the actions or inactions of any third-party payment processor, including, but not limited to, system downtime or payment service outages.

You may cancel your subscription with us at any time. However, you acknowledge and agree that Phononic has no obligation to provide a refund for any services purchased through the Services.

All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

WARRANTY DISCLAIMER

Phononic will use reasonable efforts to provide the Services. Any use of the Services, including any reliance upon or use of any of the information therein, shall be at your sole risk. The Services (including the Site and the Content) are provided “As Is” and “As Available” without warranty of any kind (all of which are hereby disclaimed), whether express, implied, or statutory, including the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

LIMITATION OF LIABILITY

In no event shall Phononic or any of its licensors or information providers (collectively, “Phononic Parties”) be liable to you or any user in connection with the services for any special, punitive, indirect, consequential, or incidental damages or for loss of profits, revenue, use, or data, in each case arising under any theory, including under warranty, contract, tort (including negligence), or other theory, even if such Phononic party is aware of or has been advised of the possibility of such damages.

The Phononic parties’ aggregate liability to you or to any third party claiming through you in connection with the use of the Services is limited to the greater of (i) the amounts, if any, you paid to us for the Services giving rise to the liability in the 12 months prior to the action giving rise to the liability, and (ii) $100.

INDEMNIFICATION

You agree to indemnify and hold the Phononic Parties harmless from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, and awards, including reasonable attorneys’ fees and costs, whether brought by third parties or otherwise, due to or arising out of your breach of these Terms and any use of the Services other than as expressly permitted in these Terms. The foregoing indemnity obligations will survive any termination of the Terms or your use of the Services. Phononic may, at its own expense, assume the exclusive defense and control of any matter subject to indemnification by you, which will not excuse your indemnity obligations under this section. You agree not to settle any matter subject to the foregoing indemnification obligations without the express consent and approval of Phononic.

TERMINATION AND SUSPENSION

We may terminate these Terms, or terminate, suspend, or restrict your access to the Services, in the event that you violate any of the Terms. Upon termination or suspension, your right to access the Site and use the Services will immediately cease. We may discontinue, temporarily or permanently, all or part of the Services with or without notice. If your access to the Services is suspended or terminated by us, you agree that you will not attempt to access the Services by any alias or other disguised or fraudulent identity or otherwise without our express prior written approval.

VIOLATIONS AND COMPLAINTS

Without limiting Phononic’s rights or remedies under these Terms or at law or in equity, Phononic may investigate complaints related to your use of the Services and alleged violations of these Terms and to take any action we deem necessary and appropriate in connection with such complaints and violations. Such action may include reporting any suspected activity that is in violation of these Terms or in violation of any law to law enforcement officials, regulators, or other third parties. In addition, we may disclose any information necessary or appropriate to such persons or entities, including personal information, relating to such complaints and violations. You agree that monetary damages may not provide a sufficient remedy to us for violations of the Terms and you consent to injunctive or other equitable relief for such violations.

GENERAL

You may not assign these Terms or otherwise transfer or sublicense any rights or obligations hereunder, in whole or in part; any attempt to do so shall be void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. If for any reason a court of competent jurisdiction finds any provision of the Terms to be invalid or unenforceable, such provision will be superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect and remain fully enforceable. You will comply with all applicable laws, regulations, and ordinances related to your use of the Services. Except as expressly stated herein, the Terms constitute the entire agreement between you and Phononic with respect to the Services, and the Terms supersede and replace all prior or contemporaneous communications, proposals, understandings, or agreement, whether electronic, oral, or written, between you and Phononic with respect to the Services or the subject matter of these Terms. Any waiver of any provision of the Terms will be effective only if in writing and signed by you and Phononic. Our failure to enforce our rights and remedies available to us with respect to your breach of these Terms shall not constitute a waiver of such breach nor of any prior, concurrent, or subsequent breach of the same or any other provision of these Terms.

GOVERNING LAW AND ARBITRATION

These Terms, and any claim, cause of action or dispute (“claim”) arising out of or related to these Terms shall be governed by the laws of the state of North Carolina regardless of your country of origin or where you access the Services. You and Phononic agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Durham County, North Carolina, except as otherwise agreed by you and us or as described in the paragraph below. At Phononic’s request, you agree to submit to the personal jurisdiction of the courts located within Durham County, North Carolina, for the purpose of litigating all such claims. Notwithstanding the above, you agree that Phononic shall still be allowed to apply for and obtain injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

For any claim (excluding claims for injunctive or other equitable relief) where the potential award is reasonably likely to be $10,000 or less, either you or us may elect to have the dispute resolved through binding non-appearance-based arbitration. In the event such arbitration is requested, such arbitration shall be conducted through a reputable alternative dispute resolution provider mutually agreed upon by you and us. The arbitration must be conducted in compliance with the following rules: (i) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed upon by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.

NOTICE AND CONTACT

Any notices given by you under these Terms shall be given in writing or by email and shall be delivered to the following address:

Phononic, Inc.

Attention: Legal

801 Capitola Drive, Durham, NC 27713

These Terms were last modified on July 31, 2015.