Terms of Service Agreement
- Introduction
This soundBrilliance website (“Website”) and mobile application (“App”) are owned and operated by soundBrilliance, LLC (“soundBrilliance” or “us” or “we” or “our”). This Terms of Service Agreement (“Agreement”) is made by and between soundBrilliance and you (“you,” “your,” or “Subscriber”). This Agreement governs your access to and use of soundBrilliance’s services for streaming music and other content, including our Website and App which incorporate or link to this Agreement (collectively, the “soundBrilliance Service” or “Services”) and any music, videos, or other material that is made available through the soundBrilliance Service (“Content”).
Please read this Agreement carefully before you start to use the Services. By using the Services, downloading the App, or by clicking to accept and agree to this Agreement when that option is made available to you, you accept and agree to be bound and abide by this Agreement. You may use the Services only for lawful purposes and in accordance with this Agreement. If you do not want to agree to this Agreement, you must not access or use the Services.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES, A WAIVER OF A JURY TRIAL, AND A WAIVER OF YOUR CLASS ACTION RIGHTS. IN ARBITRATION THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
Neither soundBrilliance nor its representatives are engaged in the practice of medicine or in rendering any health care services or related advice. soundBrilliance is a general wellness product as defined by the United States Food and Drug Administration (“FDA”), and has not been determined safe and effective by the FDA or any other regulatory agency, for the treatment, cure, prevention, mitigation, or diagnoses of any disease or condition. Content on the Services is not intended to offer medical or other health care advice concerning the diagnosis or treatment of any illness or injury nor do we make any representations or warranties whatsoever about the use of musical therapy products. Your use of the Services is subject to the additional disclaimers and notices that may appear throughout the Services. soundBrilliance and its representatives assume no responsibility for any consequence relating directly or indirectly to any action or inaction based on the information, services, or other material on the Services.
- Age and Eligibility Requirements
BY USING THE SOUNDBRILLIANCE SERVICE, YOU AFFIRM THAT YOU ARE 18 YEARS OR OLDER AND AGREE TO ENTER INTO THIS AGREEMENT, OR, IF YOU ARE NOT, THAT YOU ARE 16 YEARS OR OLDER AND HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT. Additionally, to use the soundBrilliance Service and access any Content, you represent that: any registration and account information that you submit to soundBrilliance is true, accurate, and complete, and you agree to keep it that way at all times, and you will only access the version of the Services and Content made available to you based on your location. If you do not meet the minimum age requirements then you must not register as a user.
- Our Services and the Scope of this Agreement
- 2.1. soundBrilliance Service Options
- 2.2. Service Limitations and Modifications
We use reasonable efforts to keep the soundBrilliance Service operational. However, soundBrilliance reserves the right to change the soundBrilliance Service offerings and their availability from time to time, without notice or liability to you. For example:
- The soundBrilliance Service may experience temporary interruptions due to technical difficulties, maintenance or testing, or updates, including those required to reflect changes in relevant laws and regulatory requirements.
- We aim to evolve and improve the soundBrilliance Service constantly, and we may modify, suspend, or stop (permanently or temporarily) providing all or part of the soundBrilliance Service (including particular functions, features, or subscription plans).
- Our content offering is adapting as our business evolves. soundBrilliance has no obligation to provide any specific content through the soundBrilliance Service, and soundBrilliance or the applicable owners may remove access to particular songs, videos, or other Content without notice.
Your right to terminate this Agreement if you no longer want to use the soundBrilliance Service is set forth in Section 3.3.6 below.
soundBrilliance has no liability to you, nor any obligation to provide a refund to you, in connection with internet or other soundBrilliance Service outages or failures that are caused by the actions of government authorities, other third parties, or events beyond our control.
- 2.3. Changes to this Agreement
We may make changes to this Agreement from time to time in our sole discretion. We may also make improvements or changes in the Content, Services, products, and other materials on the soundBrilliance Service, or terminate the Services at any time. All changes are effective immediately when we post them. Your continued use of the Services following the posting of such changes means that you accept and agree to the changes. You should check back from time to time so that you are aware of any changes to the Terms, as they are binding on you.
- 2.4. Notice Regarding Medical Advice
THE SOUNDBRILLIANCE SERVICE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THE WEBSITE, APP, OR AVAILABLE OTHERWISE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR TO PROVIDE ADVICE REGARDING THE DIGNOSIS, TREATMENT, OR OTHER REMEDY OF ANY ILLNESS, INJURY, OR OTHER MEDICAL CONDITION. THE SITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THE WEBSITE AND APP ARE FOR INFORMATIONAL PURPOSES ONLY. THE WEBSITE AND APP ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THE SOUNDBRILLIANCE SERVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
- Your Use of the soundBrilliance Service
- 3.1. 3.1. Access to the soundBrilliance Service
Subject to your compliance with this Agreement, we grant to you limited, non-exclusive, revocable permission to make personal, non-commercial use of the soundBrilliance Service and the Content (collectively, “Access”). This Access shall remain in effect unless and until terminated by you or soundBrilliance. You agree that you will not copy, redistribute, adapt, publicly perform, publicly display, sell, or transfer the soundBrilliance Service or the Content.
The soundBrilliance App and the Content are licensed, not sold or transferred to you, and soundBrilliance and its licensors retain ownership of all copies of the App and Content even after installation on your devices.
Any passwords or other login credentials used for the Services are for individual use only. You will be responsible for the security of your password and other login credentials. soundBrilliance will be entitled to monitor your password and, at its discretion, require you to change it. soundBrilliance reserves the right to change your method of login at any time, in its discretion, such as by removing or adding third party sign-in services.
- 3.2.Restrictions on Use
You may use the Services solely pursuant to the terms and conditions of this Agreement for you only. As a condition of your subscribing to, accessing, or using the Services, you warrant to soundBrilliance that you will not use the Services for any purpose that is unlawful or prohibited by this Agreement.
You may not (and may not authorize any party to):
- co-brand, mirror, or frame the Website or App or rebrand the Services;
- modify or adapt the Services or any Content, create derivative works based upon the Services or any Content, or publicly perform, publicly display, transmit, or distribute the Services or any Content;
- introduce viruses, spyware, or other malicious code to the soundBrilliance Service;
- transfer, assign or sublicense your login information or any other credentials or tools necessary for your access or use or other provision of the Services or the permissions granted to you, to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void;
- reverse engineer or decompile, decrypt, disassemble or otherwise reduce any of the software used to provide the Services to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;
- use or permit the Services to be used to perform services for third parties, without the prior written consent of soundBrilliance;
- disclose, provide, or otherwise make available trade secrets or other confidential information contained within the Services in any form, to any third party without the prior written consent of soundBrilliance;
- use soundBrilliance’s intellectual property (or the intellectual property of any soundBrilliance licensor) to develop any software application or products or services similar to the Services;
- perform, display, or otherwise access or use the Services for the benefit of others, or otherwise outside of the scope of permissions provided in this Agreement;
- use Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other person’s use and enjoyment of the Services or which, as determined by us, may harm soundBrilliance, or other Subscribers, or expose them to liability;
- use scrapers, bots, spiders, data mining software, or other automated tools to collect, copy, index, compile, monitor or analyze the Content or any other part of the Website or App;
- compromise, attempt to compromise, or tamper with the security of the Services and soundBrilliance’s systems;
- obtain or attempt to obtain any Content, or information through any means not intentionally made available or provided through the Services; or
- engage in any activity that violates, or that could cause us to violate, any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
You further agree to cooperate with soundBrilliance in causing any violation of these restrictions to cease.
- 3.3. 3.3. Subscriptions, Payments, and Cancellation
- 3.3.1. Paid Subscriptions
If you are subscribing to, using, or accessing the Services, you are a “Subscriber” with access to a “Subscription” as shown on the Subscription Plan Page available at https://www.soundbrilliance.com/register/activate.We provide two Subscriptions, a quarterly Subscription and an annual Subscription (each a Subscription Plan”). A Subscription Plan is required for continued access to the Services beyond the initial seven-day trial period. Each Subscription Plan starts with a seven-day free trial and, unless cancelled during the seven-day trial period, will transition to an automatically renewing Subscription Plan which is either quarterly or annually, depending on the Subscription Plan you choose (the “Subscription Period”). You may cancel a Subscription anytime in during the seven-day trial period. When you purchase a Subscription Plan, you agree to pay in advance at the beginning of the initial Subscription Period the current price as shown on the Subscription Plan page at https://www.soundbrilliance.com/register/activate which may change from time-to time, (the “Subscription Fee”), plus any applicable taxes or transaction fees; however, the Subscription Fee will not be charged until after the expiration of the seven-day trial period and only if you have not cancelled the Subscription. The payment schedule associated with a Subscription Plan is the “Billing Schedule.”
You must provide a current, valid, accepted method of payment, which you may update from time to time (a “Payment Method”) and which you expressly authorize us and our third-party payment processor to charge the recurring payments according to the Billing Schedule for your Subscription Plan. Transactions are additionally subject to any applicable terms and conditions of the third-party payment processor.
- 3.3.2. Automatic Renewal and Recurring Payments for A Subscription Plan
Your soundBrilliance Subscription will continue until canceled or this Agreement is terminated pursuant to its terms. After your initial Subscription Period ends, your Subscription Plan will automatically renew for subsequent Subscription Periods of the same length, and your Payment Method will continue to be charged the then-current Subscription Fee as shown on the Subscription Plan page at https://www.soundbrilliance.com/register/activate plus applicable taxes and fees, according to the Billing Schedule unless earlier canceled or this Agreement is terminated pursuant to the terms and conditions of this Agreement.The Subscription Fee for your Subscription Plan and any other charges you may incur in connection with your Subscription, such as taxes and possible transaction fees, will be charged to your Payment Method on the date indicated on your Managed Subscription page in your account. Your payment date(s) may change, for example, if your Payment Method failed to successfully process or if your Subscription began on a date not included in a given month (such as the 31st). Check the Billing Details page in your account to see your next payment date.
Subscription Fees are non-refundable except as expressly set forth in this Agreement or as required by applicable law. If any Subscription Fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your Subscription Plan and this Agreement.
- 3.3.3. Changes to the Subscription Plan Services
We reserve the right to modify the description of the Services we provide as part of your Subscription Plan, as well as the Services themselves, from time to time, without notice, at our sole discretion. We will send a notice to the email address associated with your account before implementing any material changes to the Services. If you are not satisfied with any such changes to the Services, you can cancel your automatic renewal at any time prior to your automatic renewal date per Section 3.3.6. - 3.3.4. Automatic Renewal Notices; Subscription Fee Changes.
soundBrilliance will send notice of upcoming automatic renewal prior to renewing your Subscription as required by law. The Subscription Fees for your Subscription Plan may change from time to time and the then-current Subscription Fees will be shown on the Subscription Plan page at https://www.soundbrilliance.com/register/activate. We will provide advance notice of any changes in Subscription Fees prior to the automatic renewal and the next Subscription Period, but this will not include notification of changes in applicable taxes.
Subscription Fee changes will take effect at the start of the next Subscription Period following the date of the Subscription Fee change and, by failing to cancel your Subscription before your automatic renewal date per Section 3.3.6, you will be deemed to have accepted the new price. If you do not agree to a Subscription Fee change, you may cancel your Subscription Plan in accordance with Section 3.3.6 of this Agreement.
You must cancel your Subscription Plan in accordance with Section 3.3.6 of this Agreement to avoid charging of the Subscription Fees (whether or not they have changed) for the next Subscription Period to your Payment Method.
- 3.3.5. Taxes.
Except as otherwise provided on the Subscription Plan page at https://www.soundbrilliance.com/register/activate, prices shown do not include any federal, state or local taxes, or any other taxes or charges imposed by any government authority, including, without limitation, sales, use, excise, value-added or similar taxes. Where applicable, such taxes and charges shall be billed as a separate item and paid by you and will be charged to your Payment Method. Tax rates are calculated based on the information you provide and the applicable rate at the time of your charge. Subscriptions are accepted with the understanding that such taxes and charges shall be added, as required by law. - 3.3.6. Cancellation Policy for Subscriptions
You may cancel your Subscription and the automatic renewal of your Subscription by submitting notice to us at any time before your effective date or automatic renewal date of your Subscription using the cancellation method listed below. The cancellation will take effect after the seven-day trial period for a trial Subscription and, for non-trial Subscriptions, the day after the last day of your current Subscription Period and your Subscription will not automatically renew. If you timely cancel automatic renewal of your Subscription, your Subscription will end and this Agreement will terminate after the last day of your current Subscription Period, unless otherwise terminated pursuant to the terms and conditions of this Agreement.No refunds will be provided for a partial Subscription Period if you cancel, but you will continue to have access to and provision of the Services available under your Subscription Plan until your current Subscription Period expires unless this Agreement is otherwise terminated pursuant to the terms and conditions of this Agreement.
You may cancel automatic renewal of your Subscription by submitting notice to us before your automatic renewal date using the following cancellation method:
- Account Portal: submit notice of cancellation by logging in to your account on https://www.soundbrilliance.com/register/activate, navigating to the Manage Subscription page, and following the procedures on that page to cancel your Subscription.
- 3.3.1. Paid Subscriptions
- Intellectual Property Rights
- 4.1. 4.1. Title and Ownership of the Services
soundBrilliance and its licensors own all right, title, and interest in and to the Services and all material and content accessible from the Services and included in or on the Website and App, including, without limitation, the Content (collectively “Proprietary Material”) regardless of the form or media in or on which Proprietary Material may exist. soundBrilliance and its licensors retain all right, title, and interest in Proprietary Materials. Neither title nor intellectual property rights in and to the Services, Content, or other Proprietary Material are transferred to you by your access to or use of the Services. Proprietary Material may not be copied, distributed, republished, uploaded, posted, publicly displayed, publicly performed, licensed, modified, or transmitted in any way without the prior written consent of soundBrilliance. You may not delete or change any copyright, trademark, or other proprietary notice on the Website or App. All rights and licenses not expressly granted in this Agreement are reserved by soundBrilliance and its licensors.
All soundBrilliance trademarks, service marks, trade names, logos, domain names, and any other features of the soundBrilliance brand are the sole property of soundBrilliance or its licensor. This Agreement does not grant you any rights to use any such elements of the soundBrilliance brand whether for commercial or non-commercial use.
- 4.2. Infringement Claims/Copyright Agent
soundBrilliance respects the rights of intellectual property owners. Notifications of claimed copyright infringement should be sent to soundBrilliance’s Designated Agent as follows:
Name of Designated Agent: Copyright Manager, soundBrilliance
Address to which notifications should be sent: 750 East Fifth Street, Reno, NV 89512
Telephone number of Designated Agent: 612.599.4154
Email address of Designated Agent: copyright@soundbrilliance.com
To be effective, the notification must be in writing and contain the following information:
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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 that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Emails sent to copyright@soundbrilliance.com for purposes other than communication about copyright claims may not be acknowledged or responded to.
- Contact Us; Customer Support; Feedback
- 5.1.Contact Us
All feedback, comments, requests for technical support and other communications relating to the soundBrilliance Service should be directed to info@soundbrilliance.com.
You can also reach us by mail at:
soundBrilliance, LLC
750 East Fifth Street
Reno, NV 89512- 5.2.Customer Support.
For customer support with account and payment-related questions, please contact us at info@soundbrilliance.com.
If you have any other questions concerning the soundBrilliance Service, please contact using the email address or mailing address provided in Section 5. 1 above.
- 5.3.Feedback.
We welcome feedback, comments, and suggestions for improvements to the Services. You hereby grant to soundBrilliance a royalty-free, perpetual, irrevocable, worldwide, sublicensable through multiple levels, transferrable, non-exclusive right and license to use, copy or otherwise reproduce, make, modify, adapt, publish, translate, broadcast, create derivative works from, distribute, offer to sell, sell, import, publicly perform, and publicly display all feedback, suggestions, ideas, or other improvements to, or reviews of, the Services that you communicate to soundBrilliance (together, “Feedback”), and to incorporate any Feedback, in whole or in part or modified as soundBrilliance sees fit, into the Services or other products or services, or otherwise make use of the Feedback in any way, in any form, media, or technology now known or later developed. You hereby waive in perpetuity all so-called “moral rights,” rights of integrity, rights of paternity, rights of disclosure, rights of withdrawal, rights of attribution, rights to prevent attribution in the event of a distortion, mutilation, or modification, and all such analogous rights in or related to any Feedback. You represent and warrant that you have all the rights and permissions necessary to grant the above license, including without limitation any necessary licenses, waivers, or assignments of intellectual property, and privacy rights, and that your Feedback conforms to all of the terms and conditions of this Agreement.
- Problems and Disputes
- 6.1.Suspending or Terminating the soundBrilliance Service
This Agreement will continue to apply to you until terminated by either soundBrilliance or you. soundBrilliance may terminate this Agreement or suspend your access to the soundBrilliance Service at any time if we believe you have breached any term of this Agreement, if we stop providing the soundBrilliance Service or any material component thereof, or as we believe necessary to comply with applicable law. If you or soundBrilliance terminate this Agreement, or if soundBrilliance suspends your access to the soundBrilliance Service, you agree that soundBrilliance shall have no liability or responsibility to you, and (except as expressly provided in this Agreement) soundBrilliance will not refund any amounts that you have already paid. You may terminate these Terms at any time, in which case you may not continue accessing or using the soundBrilliance Service.
- 6.2. Warranty Disclaimers; Limitation of Liability; Time for Filing a Claim.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOUNDBRILLIANCE SERVICE AND ALL CONTENT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES, THE CONTENT OR ANY OTHER PRODUCT, SERVICE, OR MATERIAL OBTAINED THROUGH THE APP OR WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE, APP, OR THE SERVER THAT MAKES THE WEBSITE AND APP AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE, WEBSITE, APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE DISCLAIM, TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SATISFACTION QUALITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
YOU AGREE AND UNDERSTAND THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SOUNDBRILLIANCE SERVICE IS TO UNINSTALL THE APP AND ANY OTHER SOUNDBRILLIANCE SOFTWARE, STOP USING THE SOUNDBRILLIANCE SERVICE, AND/OR CANCEL YOUR SUBSCRIPTION. YOU AGREE THAT SOUNDBRILLIANCE HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SOUNDBRILLIANCE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOUNDBRILLIANCE, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOUNDBRILLIANCE SERVICE, DEVICES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SOUNDBRILLIANCE HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SOUNDBRILLIANCE SERVICE MORE THAN THE GREATER OF (A) THE AMOUNTS PAID BY YOU TO SOUNDBRILLIANCE DURING THE TWELVE MONTHS PRIOR TO THE FIRST CLAIM; OR (B) $100.00.
Some jurisdictions may not allow the exclusion or limitation of certain types of damages, including, without limitation, incidental or consequential damages. As a result, the above limitations or exclusions may not apply to you, but in any event shall apply to the maximum extent allowed by law. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM ARISING UNDER THESE TERMS MUST BE COMMENCED (BY FILING A DEMAND OR FILING AN INDIVIDUAL ACTION AS SPECIFIED UNDER THE ARBITRATION AGREEMENT BELOW) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
- 6.3.Third-Party Rights
The following terms apply when you use a App obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the App: (1) the license granted to you for our App is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the App as specified in the terms and conditions of this App license contained in the Agreement or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (3) in the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the App, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the App; (4) you represent and warrant that (i) you are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country and (ii) you are not listed on any United States government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the App, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the App; (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this App license contained in this Agreement, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this App license contained in these Terms against you as a third-party beneficiary; and (7) each App Distributor is not responsible for addressing any claims by you or any third party relating to the App or your possession or use of the App, including: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) claims with respect to intellectual property infringement. The App Distributors are not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights.
- 6.4.Indemnification
You agree to defend, indemnify, and hold soundBrilliance, its affiliated companies, and its licensors harmless from and against all damages, losses, and expenses of any kind (including reasonable attorneys’ fees and costs) arising out of or related to: (1) your breach of this Agreement; (2) your use of the Services and Content and any activity in which you engage on or through the soundBrilliance Service; (3) your violation of any law or the rights of a third party; and (4) any Feedback provided by you.
- 6.5.Governing Law; Jurisdiction; Jury Trial Waiver
To the fullest extent permitted by applicable law, this Agreement and any dispute, claim, and/or controversy that in any way relates to or arises in connection with this Agreement, the App, the Website, the soundBrilliance Service, or your relationship with soundBrilliance as a user of the soundBrilliance Service (“Dispute”) are governed by and shall be construed in accordance with the laws of the state of Minnesota, except to the extent preempted by or inconsistent with federal law. Further, to the fullest extent permitted by applicable law, you and soundBrilliance agree to the exclusive jurisdiction of the federal or state courts located in Minnesota to resolve any Dispute that is not subject to mandatory arbitration under the Arbitration Agreement below, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
To the fullest extent permitted by applicable law, the parties agree to waive any right to a jury trial.
- 6.6.ARBITRATION AGREEMENT
You understand and agree that any Dispute shall be settled by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. The arbitration will be conducted in the English language before a single arbitrator and such arbitrator shall, in his or her sole discretion, determine the arbitrability of any alleged Dispute. The seat or place of arbitration shall be conducted in Minneapolis, Minnesota. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. The award of the arbitrator, if any, shall be accompanied by a statement of the facts and reasoning upon which the award is based. The arbitrator will not have the power to award punitive damages against any party. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration proceedings will be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. Seq.) and by the AAA Rules, without reference to state arbitration law. You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class-action basis, and that You have expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration in accordance with the provisions of this paragraph.
Notwithstanding the foregoing, in lieu of or in addition to any other remedies available to soundBrilliance, soundBrilliance may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for (a) any actual or alleged infringement or misappropriation of soundBrilliance’s or any third party’s intellectual property or proprietary rights without breach of the arbitration requirements set forth in this Section 6.6. You hereby consent to the jurisdiction and venue of the State and Federal courts of the state of Minnesota with respect to any such injunctive or other relief. You further acknowledge that soundBrilliance’s and its licensor’s rights in their intellectual property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
- Miscellaneous
- 7.1. Entire Agreement
This Agreement constitutes all the terms and conditions agreed upon between you and soundBrilliance and supersedes any prior agreements in relation to the subject matter of this Agreement, whether written or oral.
- 7.1. Severability and Waiver
Should any provision of this Agreement be held invalid or unenforceable for any reason or to any extent, the remaining provisions of the Agreement will not be affected, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by soundBrilliance or any third-party beneficiary to enforce this Agreement or any provision thereof shall not waive soundBrilliance’s or the applicable third-party beneficiary’s right to do so.
- 7.2. Force Majeure
soundBrilliance will not be liable for delays in Service or complete or partial failure to perform its obligations under this Agreement caused by any event beyond its reasonable control, including but not limited to: war; government regulation, requirement, prohibition, or travel-restriction; terrorism; disaster; strike; civil disorder; pandemic; quarantine requirements; curtailment of transportation facilities; declaration of force majeure by an upstream supplier; supply shortages; labor disputes; severe weather events or conditions; fire; flood; or computer interruptions or disruptions, including without limitation ransomware and other cyberattacks.
- 7.3. Section Headings
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- 7.4. Assignment
soundBrilliance may assign this Agreement, and may assign or delegate, in whole or in part, any of its rights or obligations under this Agreement. You may not assign this Agreement, in whole or in part, nor transfer or sublicense your rights under this Agreement to any third party.
Date of Last Modification: 04/14/2026