Last Revised: December 1, 2019
These Terms of Service explain your rights and obligations in using DNArt Inc.’s music remixing application titled Top Mix (“Top Mix”) available for use at the websites ("Websites") and via mobile application ("Mobile Apps"). We refer to our Website visitors and Mobile App users as users ("Users") of Top Mix’s services ("Services") whether as a guest or registered user.
Please read the Agreement carefully. By continuing to use the Services, you agree that you have read and are bound by these terms. If you do not agree to these terms, you must not use the Websites or the Mobile App.
These Terms of Service include important agreements about your rights and the rights of Top Mix, including a binding agreement about how to resolve any disputes between us connected to the Services.
I. ABOUT AVAILABILITY OF THE SERVICES
SOLE CONSIDERATION. You agree that our sole offer to you in connection with the Services is to provide them as-are, or as modified by us in our sole discretion, until such time as we should choose to discontinue the Services or any component of the Services.
SERVICES PROVIDED AS-ARE. You agree to use the Services as-are. UNLESS THE DISCLAIMER OF SUCH WARRANTIES IS PROHIBITED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT ACCESS TO THE SERVICE BY ANY MEANS IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED "AS ARE" AND "AS AVAILABLE," AND WE DO NOT MAKE ANY WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES, EITHER EXPRESS OR IMPLIED, SUCH AS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR PROVIDE ADEQUATE, COMPLETE OR TIMELY INFORMATION OR DATA.
ONLINE SERVICES MAY INCLUDE INTERACTIVE ACCOUNTS. In using the Services, you may be provided with the opportunity to upload information, data, or content specific to you ("Account Information" in an “Account"). Our provision of any such interactivity is a Service, and governed by these Terms of Service. You are responsible for keeping your username and password secure. If you believe that there has been unauthorized access to your username, password or your identity, please contact us as soon as possible so that we can work together to limit the damage. We have the right to disable any username or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms of Service. For certain Services, Top Mix may require you to verify your phone number and consent to a one-time SMS message sent through a third-party service provider. You are responsible for providing your accurate phone number for verification purposes.
ONLINE SERVICES SUBJECT TO CHANGE. You agree that we may change or discontinue the Services in our sole discretion and without prior notice. You agree that you will not rely on the continued availability of the Services in taking any action, refraining from any action, or entering into any commitment.
CONTENT NOT RETAINED FOREVER. You agree that any Account you may create via these Services may be terminated, and/or some or all of the associated Account Information deleted, following a period of inactivity. Such deletion may be done without prior notice.
IF IMPORTANT, KEEP A COPY. You agree that unless otherwise specified any Account Information which you upload or provide via the Services may be modified or deleted without prior notice and at Top Mix's sole discretion. Therefore, to the extent any Account Information has importance to you, you agree to maintain an original copy separate from these Services.
II. ABOUT YOUR ELIGIBILITY FOR THE ONLINE SERVICES
YOUR AGE. The Services are intended for use by individuals 13 years of age and older. You are not permitted to use the Services, establish an Account, or provide Account Information if you are under 13 years of age.
YOUR LOCATION. The Websites are intended for use in the United States. The Services are operated by Top Mix from the United States. Top Mix makes no representation that the Services are appropriate or available for use in other locations.
III. ABOUT YOUR RESPONSIBILITY FOR THE SERVICES
YOUR LIABILITY. You are fully responsible for how you use our Services. You agree to indemnify and hold harmless us and our directors, officers, employees, service providers, vendors, and agents from and against any and all losses, liabilities, claims, damages or expenses (including attorneys' fees and court costs and expenses) arising from or related to any use of the Services by you or that occurs because of you.
PROHIBITED USE OF THE SERVICES. You may not create a user name, post, upload, email or otherwise transmit to Top Mix submissions of any kind that are, within the sole discretion of Top Mix, determined to be commercial, illegal, offensive or potentially harmful to others.
YOU MUST KEEP YOUR EMAIL ADDRESS UP TO DATE. If you change your e-mail address or other contact information used by Top Mix to communicate with you electronically, you must notify Top Mix of the change immediately by logging on to the Services and updating your profile to reflect the correct email address or by sending written notice of your updated e-mail address to email@example.com.
If you do not update or change an incorrect e-mail address or other contact information, you understand and agree that any notices, statements or other communications to you from Top Mix will still be considered to have been provided to you if they were made available to you in electronic form on the Services or e-mailed to the e-mail address we have for you in our records. Top Mix reserves the right, if we choose, to restrict your ability to use the Services if Top Mix believes that the e-mail address you provided is incorrect.
IV. USE OF MATERIALS; OWNERSHIP; ABOUT INTELLECTUAL PROPERTY
Solely within the Services, you may use the materials furnished or made available to you within the Services by Top Mix, including, without limitation, sounds, recordings and/or compositions (together, “Materials”) provided by Top Mix to create a Remix (as defined below). The Materials are provided to you within the Services for the sole purpose of creating the Remix. No further rights are granted in the Materials or vested in you by the act of using the Services and/or creating the Remix, it being understood that, notwithstanding anything to the contrary, you shall not, under any circumstance, acquire any rights in and to the Materials and/or any Remix. “Remix” shall mean any recording and/or musical composition created by you within the Service embodying the Materials, including, without limitation, any so-called “remix”.
By using the Services, as between you and Top Mix, you agree that Top Mix will, from inception, exclusively own all right, title and interest in each Remix (including but not limited to the copyrights in the sound recording and musical composition embodied therein) in perpetuity, free from any claims by you or any other person. You hereby assign and transfer to Top Mix any and all rights in any Remix on a worldwide, perpetual, irrevocable and royalty-free basis, for any and all purposes, including, but not limited to, display, public performance, streaming and/or download, making of derivative works, reproduction, distribution, and all other means of use or exploitation of any Remix in any media or manner throughout the world, it being expressly understood and agreed that neither you nor any third party deriving rights through you shall be entitled to any royalties, fees or other compensation in connection with Top Mix’s (and/or its designees’) use and/or exploitation of a Remix, including, without limitation, as included within the Service. In addition, you hereby irrevocably and unconditionally waive any and all “moral rights” or equivalent rights under the laws of any jurisdiction in any Remix. It is expressly agreed and understood that Top Mix shall have the right to remove any Remix from the Services at any time in its sole discretion. Further, you acknowledge and agree that Top Mix shall have the right, in its sole discretion, to freely assign, transfer and/or license any or all of its rights in any Remix to any third party.
OUR INTELLECTUAL PROPERTY. You acknowledge and agree that Top Mix or its third party licensors own the contents of the Services and all copyrights and all other right, title and interest in and to such content, and you agree not to challenge, directly or indirectly, Top Mix's ownership (or that of its licensors) in and to such content. Nothing contained in the Services or in these Terms of Service should be construed as granting, by implication, estoppels, or otherwise, any license or right to use any name, logo, trademark or service mark displayed in the Services without the written permission of Top Mix or such third party that may own the trademark displayed via the Services, and you may not use any name, logo, trademark, or service mark available via the Services without prior written approval by Top Mix. Except as expressly permitted in these Terms of Service, you may not copy, display, distribute, perform, create derivative works of, or otherwise use the Services or their content.
COPYRIGHT VIOLATIONS. If you believe in good faith that any material provided through the Service infringes upon your copyright, you may send notice to Top Mix requesting that the material or access to the material be removed, pursuant to the Digital Millennium Copyright Act ("DMCA"), by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) and for further details). The notice must include all of the following:
An electronic or physical signature of the copyright owner or person authorized to act on behalf of the copyright owner; sufficient identification of the allegedly infringing material; sufficient information as to the location of the allegedly infringing material so that it may be found and identified; the complainant's name, address, telephone number and, if possible, email address; a written statement by the complainant of a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and a statement by the complainant, under the penalty of perjury, that the information in the notification is accurate, and under penalty of perjury, that the complainant is the owner or is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, you may send Top Mix a counter-notice. All notices with respect to Top Mix should be sent to the Top Mix Copyright Agent. Top Mix suggests that you consult your legal advisor before filing a notice or counter-notice. You expressly acknowledge and agree that Top Mix shall not be liable to you under any circumstances for declining to replace material. Also, be aware that there can be penalties for false claims under the DMCA.
Top Mix's designated Copyright Agent to receive notifications of claimed infringement is:
533 Airport Blvd
Burlingame, CA 94010
Phone Number: 650.414.4417
Only DMCA notices should go to the Copyright Agent.
V. ABOUT PAYMENT
If you purchase products or services through the Top Mix platform, you will be asked to provide billing information (e.g., name, billing address, credit card information) to the third-party payment processor designated by Top Mix (“Payment Processor”). Top Mix may change the designated Payment Processor from time to time. You warrant that all such billing information is complete and accurate, and that you are authorized to use such account information for such payments. The use of the Payment Processor is subject to any terms and conditions made available by the Payment Processor, and you must comply with all such terms and conditions. You acknowledge that you may be separately required to accept the Payment Processor’s own terms governing use of its services in the manner it specifies.
VI. ABOUT HOW WE WILL RESOLVE CONFLICTS BETWEEN US CONCERNING THE SERVICES
DISPUTE RESOLUTION -- VENUE. You agree that any dispute connected with the Services shall be resolved exclusively in San Mateo County, California. You agree to waive any and all objections to this choice of venue.
NO CLASS ACTIONS. You agree that you will only sue us as an individual in any dispute connected with the Services. You agree that you will not file a class action, or participate in a class action. You agree that you will not join any claim you may have against us with the claim of any third party.
NO JURY TRIAL; BINDING ARBITRATION. You agree to waive your right to a jury trial, and submit any dispute relating to the Services to binding arbitration. You and we agree that at the election of either party, any dispute connected with Services between us may be sent to binding individual arbitration to be administered by JAMS, Inc. ("JAMS"). If, for any reason, JAMS is not available or will not hear the case, you or we may file our case with any national arbitration company.
STANDARD OF CARE. You agree that our sole obligation to you in connection with the Services is to provide the Services as-is. You agree that unless we do something that is grossly negligent or an act of willful misconduct in connection with the Services, we will not be liable to you or to any third party.
LIMITATIONS ON LIABILITY. If, for any reason, we are judged liable to you connected with Services, you agree that your recovery will be limited to your actual damages, measured by actual out-of-pocket economic loss. You agree that you will not ask for any consequential, special, punitive or exemplary damages, or indirect or lost profits. You agree that even if you request these types of damages, a court or arbitrator cannot award them to you. You understand and agree that the price of these Services would be significantly higher but for these limitations on liability. This limitation on liability shall not be construed to apply to any damages or other substantive remedies available via statute.
WE ARE NOT RESPONSIBLE FOR ALL CIRCUMSTANCES. You also agree that we are not responsible for anything beyond our control. For example, we are not liable: for Service interruptions caused by problems with the communications network; for problems caused by any Internet service provider; for your computer or its programs failing; for the acts of criminal attackers, whether in real-time or automated (e.g., viruses); other technologically harmful material that may infect your computer equipment, computer programs, data or proprietary material due to your use of the Websites or Mobile Apps or to your downloading of any content on it, or on any website linked to it; or for errors in information provided to us upon which we reasonably rely. These are only examples. We assume no responsibility for the content of websites linked on the Websites or Mobile Apps. Such links should not be interpreted as endorsement by us of those linked websites. We will not be liable for any loss or damage that may arise from your use of them.
VII. ABOUT CHANGES TO THIS AGREEMENT
TERMINATION BY US. We reserve the right to terminate this Agreement, in our sole discretion. We may terminate this Agreement prior to sending you written notification. For example, we will terminate the account of any User who threatens or harasses any other User.
AMENDMENTS. These Terms of Service may be updated from time to time. Non-material changes and clarifications will take effect immediately, and material changes will take effect within 30 days of their posting on the Websites. Where the changes are material, we may also choose to email all our registered users with the new details and it is within our sole discretion whether or not we choose to do so. The date of the most recent revisions will also appear on this page.
VIII. CONTACT INFORMATION