Last updated: Nov 29, 2018
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THIS TERMS OF SERVICE AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU," "YOUR" OR "YOURSELF") AND VITALIY ALEKSEEV ("OUR," "US," "WE" OR "vitalek.app"), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED 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 DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
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 access the Content. Certain areas and functions of the Service require registration, while other areas and functions do not.
YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by the 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. Once registered for the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as "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”. A Registered User may only maintain one active account on vitalek.app. vitalek.app reserves the right to terminate any and all multiple accounts by a single Registered User.
4.1 vitalek.app will make reasonable efforts to keep the Service operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of vitalek.app may, from time to time, result in temporary service interruptions. vitalek.app 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 vitalek.app 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.
4.2 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; except, however, that you may print out text-based Flashcards and/or Words for your personal, non-commercial use. In addition, you agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any Content protection methods. “Flashcards” or “Cards” means a system of notation using letters, symbols, or other visual cues instead of standard notation to indicate how a musical work is to be played. “Words” means the words of a musical composition.
4.3 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.
4.4 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.
4.5 In some cases, vitalek.app 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, vitalek.app is sometimes required to pull certain Content off the Service for legal reasons. Therefore, certain Content offered or advertised by vitalek.app may not be available when you try to access it, and not all Content is available in all countries or territories.
4.6 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.
5.1 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. Without limitation of any other provisions hereof regarding termination, we reserve the right to terminate your use of the Service, without cause, upon reasonable notice.
5.2 You may terminate this Agreement by ceasing to use Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service.
5.3 Termination of this Agreement shall not relieve you of any obligations to pay accrued charges.
INTELLECTUAL PROPERTY RIGHTS
6.1 The Content available through the Service is the property of vitalek.app or its Content Providers and is protected by copyright and other intellectual property laws. Content received through the Service may be accessed for your personal, non-commercial use only.
6.2 You acknowledge that vitalek.app 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 vitalek.app reserves all rights not expressly granted hereunder.
You may not:
Frame or mirror any part of the Service without our express prior written consent.
Create a database by systematically downloading and storing all or any Content.
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.
Use any robot, spider, rover, scraper, offline readers, site search/retrieval applications or any other data mining technology or automatic or manual process, system or software to monitor, cache, frame, mask, extract data from, copy or distribute the Content (except as may be a result of standard search engine or internet browser usage) or circumvent the navigational structure or presentation of the Service, without the express prior written consent of vitalek.app.
Bypass any measures vitalek.app may use to prevent or restrict access to the Service.
You shall promptly notify vitalek.app in writing upon your discovery of any unauthorized use or infringement of the Service or the Content or vitalek.app's 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, vitalek.app 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.
6.3 We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on the site;
(iv) your address, telephone number, and email address;
(v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(v) 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.
6.4 The vitalek.app logos and other trademarks on the site are the property of their respective owners and are owned by, licensed to, or, where required, used with permission by vitalek.app and may not be reproduced, copied, or manipulated in any manner without the express, written approval of the trademark owner.
7.1 The Service may, but is not obligated to, offer interactive features that allow Registered Users to, among other things, submit or post Content (“User Generated Content”) or links to third party Content on areas of the Service accessible and viewable by other users of the Service and the public. If you are a Registered User, you represent and agree that any use by you of such features, including any User Generated Content or links submitted or posted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste, and that you have obtained all necessary rights, licenses or clearances. Registered Users also further agree to provide accurate and complete information in connection with your submission or posting of any User Generated Content on the Service. “User Generated Content” includes, without limitation, Flashcardss (text or electronic), reviews, videos, photos, articles, audio files, applications and any other content whether copyrightable or not.
7.2 vitalek.app does not claim any ownership rights in User Generated Content that you transmit, submit, display or publish (“post”) on, through or in connection with the Service. After posting your User Generated Content on, through or in connection with the Service, you continue to retain any such rights that you may have in your User Generated Content, subject to the limited license herein. By posting any User Generated Content on, through or in connection with the Service, you hereby grant to vitalek.app a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such User Generated Content solely on, through or in connection with the Service, including, without limitation, through the Service to applications, widgets, websites or mobile, desktop, including, without limitation, distributing part or all of the Service and any User Generated Content included therein, in any media formats and through any media channels, and shall constitute a waiver of any rights, ''moral rights,'' or any similar rights under any jurisdiction.
7.3 The license you grant to vitalek.app is non-exclusive (meaning you are free to license your User Generated Content to anyone else in addition to vitalek.app), fully-paid and royalty-free (meaning that vitalek.app is not required to pay you or anyone else deriving rights from you for the use on the Service of the User Generated Content that you post), sublicensable (so that vitalek.app is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the Services), perpetual (meaning that no termination of this Agreement will affect the license granted by you), and worldwide (because the Internet and the Services are global in reach).
7.4 vitalek.app reserves the right not to post or publish any User Generated Content, and to delete, remove or edit any User Generated Content, at any time in its sole discretion without notice or liability.
7.5 vitalek.app has the right, but not the obligation, to monitor any information and User Generated Content submitted or posted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that vitalek.app in its sole discretion deems appropriate.
7.6 Rights Granted to Registered Users:
(a) Flashcards Rights. Subject to any third party restrictions, vitalek.app grants to Registered Users a nonexclusive right and license, solely in connection with the Service, to (i) create Flashcardss based upon the compositions that we have licensed from third party publishers and writers (the “Licensed Compositions”); and (ii) reproduce, distribute and display the Cards (or any portion thereof) on or through the Service.
(b) Lyric Rights. Subject to any third party restrictions, vitalek.app grants to Registered Users a nonexclusive right and license, solely in connection with the Service, to include and display the Words of the Licensed Compositions, in whole or in part, in conjunction with the Cards and independently of the Cards (the “Words Rights”).
(c) Demonstration Rights. Subject to any third party restrictions, vitalek.app grants to Registered Users a nonexclusive right and license, solely in connection with the Service, to (i) record the Licensed Compositions as audio files, (ii) record the Licensed Compositions in synchronization with visual images; and (iii) perform publicly the Licensed Compositions and any reproductions in conjunction with or in lieu of the Flashcardss (collectively the “Demonstration Rights”).
(d) The Licensed Composition to Flashcards Rights, the Demonstration Rights and the Words Rights as provided hereunder are collectively referred to hereunder as the “Rights Granted.” For purposes of clarification and the avoidance of doubt, the Rights Granted are only granted to Registered Users of the Service and not to any other users of or visitors to the Service.
(e) 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 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..
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, THE vitalek.app SITE 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.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER vitalek.app, 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 vitalek.app 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.
CHOICE OF LAW AND CONSENT TO JURISDICTION
The Service is created, operated and controlled by vitalek.app in the State of California, United States of America. The laws of the State of California will govern this Agreement without giving effect to any principles or conflicts of laws.
You understand that by using the Service, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service at your sole risk and that vitalek.app shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content descriptions are provided for convenience, and you acknowledge and agree that vitalek.app does not guarantee their accuracy.
13.1 vitalek.app believes in building a caring community based around music and will not tolerate antisocial or unlawful behavior in connection with the Service. We expect you to use only language appropriate for general conversation, with no insulting, racist, obscene or sexually explicit remarks
13.2 You are solely responsible for the content of any transmissions you make to the Service or any User Generated Content you add to the Service (the ''Communications''). You will not use the Service to: Upload, post, e-mail, transmit, display, copy, distribute, promote, or otherwise communicate to the public;
(a) Communications of any kind that are false, unlawful, threatening, tortious, disparaging (including disparaging of vitalek.app, its parent, subsidiaries or affiliates), anything that adversely affects vitalek.app such as discouraging any person or entity from advertising with, linking to or supplying vitalek.app, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, racist, sexually explicit, ethnically or culturally offensive, indecent, or that promotes violence, racial hatred, terrorism, or illegal acts, or are otherwise objectionable in vitalek.app’s sole discretion;
(b) Communications of any kind that violate, plagiarize, misappropriate or infringe upon the rights of third parties including, without limitation, copyright (including, offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial registration numbers for software programs, rights management information or any type of cracker utilities), trademark, patent, trade secret, rights of privacy or publicity, confidential information or any other proprietary right;
(c) Communications of any kind that contain a virus, Trojan horse, time bombs, worms, spyware, adware, malware, bots, any automated use of the system, such as scripts, or other harmful component or restricts or inhibits any other user's uninhibited use and enjoyment of the Service, interferes with, overburdens, impairs or disrupts the Service or servers or networks connected to the Service, or disobeys any requirements, procedures, policies or regulations of networks connected to the Service;
(d) Communications of any kind that are false or misleading or that constitute or contain false or misleading indications of origin or statements of fact, including, without limitation, by forging any TCP/IP packet header, any part of the header information in any transmission to the Service, or otherwise manipulating identifiers in order to disguise the origin of any content transmitted to or from the Service;
(e) Communications of any kind which include any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, requests for money, petitions for signature, or any other form of solicitation;
(f) Communications of any kind that encourage, promote, solicit or commit conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any local, state, national or international law or otherwise make available any material that exploits or harms any individual, corporation or other entity;
(g) Communications of any kind designed to impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(h) Communications of any kind that disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges on the Service;
(i) Communications of any kind designed to stalk, abuse, sexually exploit, violently exploit, groom, act violently toward, threaten or otherwise harass another;
(j) Communications of any kind designed to use or attempt to use another's information, account, password, service or system except as expressly permitted;
(k) Communications of any kind designed to solicit or collect personal data including telephone numbers, addresses, last names, email addresses, or any other kind of information about users, including without limitation, through such means as spidering, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of accessing, logging-in or registering on the Website or for any services or features offered on or through the Website; and
(l) Communications of any kind that undertake any commercial purpose or activity without the prior written consent of vitalek.app, including, for example and without limitation, inserting your own or a third party’s advertising, branding or promotional content into the Service (for example, without limitation, in an RSS feed or a podcast received from vitalek.app or otherwise available through the Service).
13.3 vitalek.app reserves the right, in its sole discretion, to terminate your account or take such other action as vitalek.app sees fit in relation to any breach of vitalek.app’s Public Communication policy or any of the other terms set forth herein. In extreme cases or as required by law or regulation, vitalek.app reserves the right to take court action and/or report your conduct to the relevant authorities.
13.4 You acknowledge and agree that any Communications made to or by means of any portion of the Service are public. You acknowledge that (i) you have no expectation of privacy in any Communication, and (ii) no confidential, fiduciary, contractually implied or other relationship is created between you and vitalek.app by reason of your transmitting a Communication to any area of the Service.
You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Service is at your sole risk. vitalek.app 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. You acknowledge and agree that vitalek.app is not responsible for any User Generated Content posted by users of the Service. Prior to making any decisions based on information posted on the Service, you are advised to verify the information. vitalek.app shall not have any liability arising from your acts or decisions based upon the information provided on the Service.
LINKS TO OTHER SITES
vitalek.app LINKING AND WIDGET POLICY
Any website that links to the Service or on which you include the vitalek.app widget: (a) must not frame, surround, obfuscate or create a browser or border environment around any of the Content of the Service; (b) may link to, but not replicate, the Content of the Service; (c) must not imply that vitalek.app or the Service are endorsing or sponsoring it or its products, unless vitalek.app has given its prior written consent; (d) must not present false information about vitalek.app or its products or services; (e) must not use the Service or trademarks except as expressly permitted in this Agreement or without vitalek.app’s prior written permission; (f) must not contain content that is illegal, obscene or defamatory, or that could be construed as distasteful, offensive or controversial; and (g) must not support, endorse or encourage piracy or the unauthorized exploitation of intellectual property rights. By linking to the Service, you agree that you do and will continue to comply with the vitalek.app Linking and Widget Policy. Notwithstanding anything to the contrary contained in this Agreement, vitalek.app reserves the right to deny permission to link to the Service for any reason in our sole and absolute discretion. Any vitalek.app widget is not provided for commercial use, distribution or exploitation. If you are the operator of a commercial website and would like to link to the Service or include the vitalek.app widget in your website, please contact us by emailing . vitalek.app reserves the right to remove links or block the vitalek.app widget at any time and for any reason in its absolute discretion.
OTHER IMPORTANT PROVISIONS
17.1 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.
17.2 You shall not use the Service in any manner contrary to local, state or federal law. vitalek.app 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.
17.3 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.
17.4 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.
17.5 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.
17.6 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.
17.8 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.
17.9 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.
CHANGES OR MODIFICATIONS
App Store LLC (“App Store”) provides services to you subject to the following notices, terms, and conditions (“Terms”) PLEASE READ THESE TERMS CAREFULLY. THESE TERMS, AS MODIFIED OR AMENDED FROM TIME TO TIME, ARE A BINDING CONTRACT BETWEEN App Store AND YOU ("you”). IF YOU VISIT, USE, OR SHOP AT THE WEBSITES OPERATED BY App Store, INCLUDING ULTIMATEGUITARSTORE.COM, (THE “SITES”) YOU ACCEPT THESE TERMS. IN ADDITION, WHEN YOU USE ANY CURRENT OR FUTURE App Store SERVICE OR VISIT OR PURCHASE FROM ANY BUSINESS AFFILIATED WITH App Store, WHETHER OR NOT INCLUDED IN THE SITES, YOU ALSO WILL BE SUBJECT TO THE GUIDELINES AND CONDITIONS APPLICABLE TO SUCH SERVICE OR BUSINESS. IF THESE CONDITIONS ARE INCONSISTENT WITH SUCH GUIDELINES AND CONDITIONS, SUCH GUIDELINES AND CONDITIONS WILL CONTROL.
2. CUSTOMER SUPPORT
You may contact App Store Customer Service at email@example.com. You acknowledge that the provision of customer support is at App Store’s sole discretion, and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an Account (defined below) and that you submit your customer support inquiries using such Account.
3. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
We are not infallible, and therefore we do not warrant that product specifications, pricing, or other content on the Sites is complete, accurate, or error-free. In the event of any errors relating to the pricing or specifications of any product, App Store shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge.
4. RISK OF LOSS
All items purchased from any App Store site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier.
5. ELECTRONIC COMMUNICATIONS
You agree to electronic communication for all of your transactions and communication with App Store and the Sites. You agree that all postings, notices, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.
6. NOTICES AND CONTACT INFORMATION; COPYRIGHT COMPLAINTS
Except as otherwise provided in these Terms, App Store will give you any notices by posting them on the Sites, and you agree that such posting will constitute effective notice. You authorize App Store to send notices (including without limitation notice of subpoenas or other legal process, if any) via electronic mail as well if App Store decides, in its sole discretion, to do so. You agree to keep your address current and that notice provided by App Store to the address that you have most recently provided will constitute effective notice. App Store’s address for Legal Notices is:
App Store LLC.
268 Street,#3044, San Francisco, CA 94104
App Store respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide App Store’s copyright agent with the written information specified below.
7. MODIFICATIONS TO TERMS AND SITES
8. POSTING CONTENT ON THE SITES; REPRESENTATIONS AND WARRANTIES
You agree to be liable for any content posted using your Account and for any transactions associated with your Account. By displaying or publishing ("posting") any content on the Sites, including without limitation text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship (collectively, "Content"), you warrant and represent that (a) you own all rights in your Content and the performance contained in your Content or, alternatively, you have acquired all necessary rights in your Content to enable you to grant to App Store the rights in your Content described herein and for us to exercise the rights with respect to such Content that you grant herein; (b) you are the individual pictured, depicted, and/or heard in your Content, or, alternatively, you have obtained permission (and, if applicable, publicity rights) from each person (including consent from parents or guardians for any individual under the age of eighteen (18)) who appears and/or is heard in your Content to grant the rights to App Store described herein; and (c) your Content is not defamatory in nature, does not infringe the intellectual property rights, privacy, rights to publicity or any other legal or moral rights of any third party.
9. OWNERSHIP OF RIGHTS; LICENSE RIGHTS
You hereby grant to App Store a permanent, worldwide, royalty-free, freely transferable, freely sublicensable (through unlimited levels of sublicense), non-exclusive license to use, reproduce, modify, adapt, transmit, distribute, publicly perform and display (including in each case by means of a digital audio transmission), and create derivative works of the Content, in any form, media, or technology now known or later developed. You also hereby waive any moral rights you may have in such Content under the laws of any jurisdiction. You agree that we may (but are not obligated to) display your Content, and your username or your actual name (according to the preferences you select at the time that you register) along with your Content. You acknowledge that the posting of your Content for any period of time is sufficient consideration for the license granted herein to App Store.
10. PROHIBITED CONDUCT
You agree not to post to the Sites any Content or any other materials whatsoever that is or could appear to be: (a) untrue, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another person's privacy or protected data, hateful, or racially, ethnically or otherwise objectionable; (b) infringing or alleged to be infringing upon a third party's intellectual property rights, including any patent, trademark, trade secret, copyright, right of publicity, or other proprietary rights of any party, including, without limitation, any Content that is the subject of any third party claim of infringement; (c) of a type that you do not have a right to transmit under any law or under contractual or fiduciary relationships, such as inside information and proprietary and confidential information; (d) unsolicited, undisclosed or unauthorized advertising; (e) 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; (f) data or information obtained through access that was not authorized by the owner of the data or information, or with respect to which such posting would constitute unauthorized use; or (g) in violation of any applicable local, state, national or international law, regulation, or statute (including export laws).
You agree not to do, or attempt to do, any of the following, subject to applicable law: (a) alter information on or obtained from the Sites; (b) tamper with postings, registration information, profiles, submissions or Content of other users; (c) use any robot, spider, scraper or other automated means or interface not provided by us to access the Sites or extract data or gather or use information, such as email addresses, available from the Sites or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters"; (d) frame any part of the Sites, or link to the Sites, or otherwise make it look like you have a relationship to us or that we have endorsed you or your Content for any purpose except as expressly permitted in writing by App Store; (e) impersonate or misrepresent your affiliation with any person or entity; (f) bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Sites (except as otherwise expressly permitted by law); (g) take any action which might impose a significant burden (as determined by us) on the Site's infrastructure or performance, or send to or otherwise impact us or the Sites (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Sites or any recipient.
11. MONITORING OF SITE CONTENT
We are under no obligation to restrict or monitor Site Content in any way. YOU UNDERSTAND AND ACKNOWLEDGE THAT App Store DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF CONTENT AND THAT USE OF THE SITES IS AT YOUR OWN RISK. Notwithstanding the foregoing, we reserve the right to modify or remove any Content at any time. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other users, are those of the respective author(s) or distributor(s) and not of App Store. App Store neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on these Sites by anyone other than authorized App Store employees acting in their official capacities.
12. PROTECTION OF SITE CONTENT
Our Sites are protected by U.S. and international intellectual property laws, which you agree to respect. All content on the Sites, including but not limited to text, logos, icons, images, graphics, audio clips, compilations, and downloads, as well as the collection, arrangement, and assembly of such content, is the exclusive property of App Store or its content suppliers. All software used on the Sites is the property of App Store or its software suppliers.
13. TERMINATION OR CANCELLATION
You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate these Terms, your access to the Sites, and/or your Account, or suspend or block your access to the Sites. You will still be liable for any breaches of these Terms and/or obligations incurred before the Terms end. If you use the Sites after termination of these Terms, that use will constitute your agreement to the Terms then posted on the Sites. App Store may continue to exploit electronic or printed materials it has created, or developed specific plans to create, that contain such Content according to the terms contained in Section 9 with respect to removal or modification of Content previously posted on the Sites.
14. DEALINGS WITH MERCHANTS; LINKS
Your correspondence or business dealings with, or participation in promotions of, third party merchants or advertisers that are found on or through the Sites or which provide links on the Sites, including, for example, "click to purchase" and other similar programs, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such merchant or advertiser. You waive any claim against App Store and agree to hold App Store harmless from any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such merchants or advertisers on the Sites.
16. DISCLAIMER OF WARRANTIES
THE SITES MAY CONTAIN ADVICE, OPINIONS, INSTRUCTIONS AND STATEMENTS FROM App Store, ITS USERS AND OTHER CONTENT AND INFORMATION PROVIDERS. THIS CONTENT IS INTENDED TO BE USED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU USE THE SITES AND CONTENT AT YOUR OWN RISK. THE SITES ARE PROVIDED BY App Store ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, App Store MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES OR THE INFORMATION OR CONTENT INCLUDED ON THE SITES. App Store MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, App Store EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
17. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER App Store, NOR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS AND SUPPLIERS, NOR EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF App Store AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUPPLIERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
18. ADDITIONAL TERMS
a. Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible.
c. Disputes; Choice of Law; Export Limitations. If you choose to access this Site from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Sites in violation of U.S. export laws and regulations or the Terms. By visiting the Sites, you agree that these Terms and all performances and claims of every nature (including without limitation, contract, tort and strict liability) relating in any way to any aspect of the Sites will be governed by the applicable federal law, and the laws of the State of California, without regard to any conflicts of laws principles that would result in the application of the law of a different jurisdiction.
d. Limitations on Actions. Any action concerning any dispute you may have with respect to the Sites must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.
e. Paragraph Headings. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect.
g. No Waiver. The failure of App Store to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or App Store's right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.
PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide App Store’s copyright agent with the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the site;
Your address, telephone number, and e-mail address;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright 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 owner or authorized to act on the copyright owner's behalf.
NOTICE: NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
App Store WILL NOT GIVE, SELL, OR OTHERWISE TRANSFER ADDRESSES MAINTAINED BY App Store TO ANY OTHER PARTY FOR THE PURPOSES OF INITIATING, OR ENABLING OTHERS TO INITIATE, ELECTRONIC MAIL MESSAGES EXCEPT AS AUTHORIZED BY APPROPRIATE App Store PERSONNEL OR POLICIES. EXCEPT FOR PARTIES AUTHORIZED TO HAVE ADDRESSES MAINTAINED BY App Store, PERSONS MAY VIOLATE FEDERAL LAW IF THEY: (1) INITIATE THE TRANSMISSION TO App Store COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
NOTICE RE TRADEMARKS
The trademark “App Store”, “vitalek.app”and all other trademarks used in the Sites are owned or used under license by App Store and its affiliated organizations. The names of third parties and their products mentioned may be their trademarks. You may not use any of the above or other trademarks displayed on the Sites or in any Site content. All rights are reserved.
NOTICE RE COPYRIGHT OWNERSHIP: © App Store LLC. All rights reserved.
All content on the Sites is subject to intellectual property rights, contractual or other protection. The intellectual property rights are owned by us or our licensors. No content may be copied, distributed, republished, uploaded, posted or transmitted in any way except as provided expressly in the Terms or with our prior express written consent. Modification or use of the materials for any other purpose may violate intellectual property rights.