TERMS & CONDITIONS
Effective Date: June 21, 2017.
Welcome to the ONSIA® Mobile application and Website which is located at (the "Website"). The following Terms of Service ("TOS") contain the terms that govern your use of the Website and ONSIA® Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the ONSIA® Service. Use of the ONSIA® Website constitutes acceptance of these TOS. Sound Art™ is a Trademark of ONSIA®.
ONSIA® reserves the right to add, delete and/or modify any of the terms contained in this TOS, at any time and in its sole discretion, by posting a new agreement on the ONSIA® Website. If any modification is unacceptable to you, your only recourse is to not use the Website and the ONSIA® Service. Your continued use of the ONSIA® Website following posting of a new TOS on the ONSIA® Website will constitute binding acceptance of the changes.
- The ONSIA® Service. ONSIA® provides a number of Internet-based services through the Website (all such services, collectively, the "ONSIA® Service"). One such service enables users to create customized photographs and prints (collectively, "Products"). ONSIA® users may create and purchase individual Products for their own use.
Use of the Website and ONSIA® Service
- ONSIA® will only knowingly provide the ONSIA® Services to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the ONSIA® Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The ONSIA® Service is not intended for children under the age of 13.
- Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the ONSIA® Service and the Website.
- Your License to Use the Website and the ONSIA® Service.
- ONSIA® solely and exclusively owns all intellectual property and other rights, title and interest in and to the ONSIA® Service and Website, except as expressly provided for in these TOS. For example and without limitation, ONSIA® owns the trademark used, the copyrights in and to the Website, and certain technology used in providing the ONSIA® Service. You will not acquire any right, title or interest therein under these TOS or otherwise.
- ONSIA® grants you a limited revocable license to access and use the Website and the ONSIA® Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Website for purposes prohibited by ONSIA®; to compete with ONSIA®; create derivative works based on the content of the Website, or download or copy the Website (other than page caching). If you use the Website in a manner that exceeds the scope of this license or breach this TOS, ONSIA® may revoke the license granted to you, AND PURSUE ANY OTHER LEGAL COURSE OF ACTION PERMITTED UNDER APPLICABLE STATE OR FEDERAL LAW.
- This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.1.
- Prohibited Use. You may only use the ONSIA® Service as expressly permitted by ONSIA®. You may not cause harm to the Website or the ONSIA® Service. Specifically, but not by way of limitation, you may not: (i) interfere with the ONSIA® Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the ONSIA® Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the ONSIA® Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain ONSIA®'s name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the ONSIA® Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS.
- Prohibited Use Promise. By using the ONSIA® Website, you are promising that you are not using the ONSIA® Service or the Website for any of the Prohibited Uses.
- Right of Refusal
ONSIA® reserves the right to refuse to process any order for one or more products at its sole and absolute discretion and shall not incur any liability, cost or expense for any such refusal. ONSIA® reserves the right to refuse to process any order for one or more products at its sole and absolute discretion and shall not incur any liability, cost or expense for any such refusal.
- Use of Your Content
You do not lose ownership of the content that you design on, or upload to, the Website (“Content”). By uploading Content to the Website or creating Content with ONSIA®'s design tools, however, you grant the following licenses to ONSIA®: the nonexclusive, worldwide, transferable, sublicensable right to copy, crop, reproduce, publicly display, and distribute the Content in advertising, marketing, samples, and promotional materials for the purpose of promoting the Website and Products; and the right to make modifications to your Content as ONSIA®, in its sole discretion, finds necessary to achieve the above-listed purposes. You may remove the Content you designed at any time, and you retain any copyright and other intellectual property rights in that Content. If you choose to remove Content that you designed or uploaded and notify ONSIA® of your intention to terminate the licenses described in the above paragraph, those licenses will terminate, except that ONSIA® may fulfill all orders that are in any way derived from that Content placed prior to notice of termination and may continue to use said Content in marketing and promotional materials.
Reservation of Rights
- ONSIA® reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If ONSIA® determines, in its sole and absolute discretion, that you or another ONSIA® user have breached or will breach a term of these TOS or that such transaction or communication is inappropriate, ONSIA® may cancel such transaction or take any other action to restrict access to or the availability of any material that we may consider objectionable, without any liability to you or any third party.
- Modification of the Service. ONSIA® may modify the ONSIA® Service at any time with or without notice to you, and will incur no liability for doing so.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant ONSIA® permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that ONSIA® will have no obligation to keep any Submissions confidential. You will not bring a claim against ONSIA® based on "moral rights" or the likes arising from ONSIA®'s use of a Submission. This Section does not apply to your Content that will appear as part of your product that you use in connection with ONSIA® Service.
Representations and Warranties
- Mutual Representations and Warranties. You represent and warrant to ONSIA® and ONSIA® represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
- By You. You represent and warrant to ONSIA® that, your use of the ONSIA® Service and any order that you place with ONSIA®: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or any other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to ONSIA® that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) ONSIA® will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that ONSIA® incurs in providing the ONSIA® Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
Disclaimers and Exclusions
- DISCLAIMER OF WARRANTIES. ONSIA® PROVIDES THE WEBSITE AND ONSIA®SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. ONSIA® DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, ONSIA®SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. ONSIA® MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
- EXCLUSION OF DAMAGES. ONSIA® WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE ONSIA®SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF ONSIA® EXCEED THE VALUE OF SIGNS RECEIVED OR SERVICES RENDERED. THE VALUE OF SIGNS OR SERVICES ARE LIMITED TO THE STATED VALUE ON THE ONSIA® WEBSITE OR AS STATED BY AN AUTHORIZED ONSIA® AGENT.
You agree to indemnify and hold ONSIA® and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission, including but not limited to any claim that your Content infringes or violates the legal rights of any other party. If you have to indemnify ONSIA® under this Section, ONSIA® will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without ONSIA®'s express written permission.
- ONSIA® may suspend or terminate your use of the Website or ONSIA® Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
- Notwithstanding Section 10.1 above, these TOS will survive indefinitely unless and until ONSIA® chooses to terminate them
- Effect of Termination. If you or ONSIA® terminates your use of the Website or the ONSIA® Service, ONSIA® may delete any Content or other materials relating to your use of the ONSIA® Sound Art™ Service on ONSIA®'s servers or otherwise in its possession and ONSIA® will have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to ONSIA®, you must use the following addresses: 26784 Vista Terrace Lake Forest California 92630. If ONSIA® provides notice to you, ONSIA® will use the contact information provided by you to ONSIA®. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
- Dispute Resolution
All disputes arising out of, relating to or connected with these TOS or your use of any part of the ONSIA® Service will be exclusively resolved under confidential binding arbitration held in Orange County, California before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought exclusively in a federal or state court located in Orange County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Orange County.. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the ONSIA® Service must be asserted individually. Notwithstanding anything to the contrary in this Section 12, either party may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the ONSIA® without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of ONSIA®. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and ONSIA® are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.