IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT TRALA’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 9.6 BELOW.
PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Services provide an online web- and application-based platform through which you can access tools and curriculum that are designed to help you learn how to play violin.
1. Use of the Services and Trala Properties.
The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “Trala Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Trala grants you a limited license to reproduce portions of Trala Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Trala in a separate license, your right to use any Trala Properties is subject to the Terms.
1.1 Application License.
Subject to your compliance with the Terms, Trala grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You understand that Trala Properties are evolving. As a result, Trala may require you to accept updates to Trala Properties that you have installed on your computer or mobile device. You acknowledge and agree that Trala may update Trala Properties with or without notifying you. You may need to update third-party software from time to time in order to use Trala Properties.
1.3 Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Trala Properties or any portion of Trala Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Trala Properties (including images, text, page layout or form) of Trala; (c) you shall not use any metatags or other “hidden text” using Trala’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Trala Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Trala Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Trala Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Trala Properties. Any future release, update or other addition to Trala Properties shall be subject to the Terms. Trala, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Trala Properties terminates the licenses granted by Trala pursuant to the Terms.
1.4 Third-Party Materials.
As a part of Trala Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Trala to monitor such materials and that you access these materials at your own risk.
2. Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Trala Properties, including but not limited to, a mobile device that is suitable to connect with and use Trala Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Trala Properties.
3. Responsibility for Content.
3.1 Types of Content.
You acknowledge that all files, materials, data, text, audio, video, images and other content (“Content”), including any musical pieces (“Pieces”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Trala, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available (“Make Available”) through Trala Properties (“Your Content”), and that you and other users of Trala Properties, and not Trala, are similarly responsible for all Content they Make Available through Trala Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content.
You acknowledge that Trala has no obligation to pre-screen Content (including, but not limited to, User Content), although Trala reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Trala pre-screens, refuses or removes any Content, you acknowledge that Trala will do so for Trala’s benefit, not yours. Without limiting the foregoing, Trala shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.1 Trala Properties.
Except with respect to Your Content and User Content, you agree that Trala and its suppliers own all rights, title and interest in Trala Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Trala game client, and Trala game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Trala Properties.
TRALA and other related graphics, logos, service marks and trade names used on or in connection with Trala Properties or in connection with the Services are the trademarks of Trala and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Trala Properties are the property of their respective owners.
4.3 Your Content.
Trala does not claim ownership of Your Content. However, when you post or publish Your Content on or in Trala Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. Subject to any applicable settings that you select, you grant Trala a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Trala Properties to you and to our other users. Please remember that when you post Pieces to public areas of the Services or without any privacy settings, other users may search for, see, and use any of those Pieces. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Trala, are responsible for all of Your Content that you Make Available on or in Trala Properties.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Trala through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Trala has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Trala a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Trala Properties.
5. User Conduct.
As a condition of your use of the Trala Properties, you agree not to use Trala Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Trala Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iv) involves commercial activities and/or sales without Trala’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Trala; (vi) interferes with or attempt to interfere with the proper functioning of Trala Properties or uses Trala Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Trala Properties, including but not limited to violating or attempting to violate any security features of Trala Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Trala Properties, introducing viruses, worms, or similar harmful code into Trala Properties, or interfering or attempting to interfere with use of Trala Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Trala Properties.
Trala may, but is not obligated to, monitor or review Trala Properties and Content at any time. Without limiting the foregoing, Trala shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Trala does not generally monitor user activity occurring in connection with Trala Properties or Content, if Trala becomes aware of any possible violations by you of any provision of the Terms, Trala reserves the right to investigate such violations, and Trala may, at its sole discretion, immediately terminate your license to use Trala Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users.
7.1 User Responsibility.
You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that Trala reserves the right, but has no obligation, to intercede in such disputes. You agree that Trala will not be responsible for any liability incurred as the result of such interactions, including any Lessons between Students and Teachers.
7.2 Content Provided by Other Users.
Trala Properties may contain User Content provided by other users. Trala is not responsible for and does not control User Content. Trala has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
8. Third-Party Services.
8.1 Third-Party Websites, Applications & Ads.
Trala Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Trala Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Trala. Trala is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Trala provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store (“App Store”). Note that we do not guarantee the Application will be available in any specific App Store. You acknowledge that the Terms are between you and Trala and not with the App Store. Trala, not the App Store, is solely responsible for Trala Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Trala Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Trala Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
You can become a subscriber to the Services by purchasing a subscription through the App Store you used to download the Application. Please note that if you purchase a subscription through the App Store, the sale is final, and we will not provide a refund. Your purchase will be subject to the App Store’s applicable payment policy, which also may not provide for refunds.
9.2 Service Subscription Fees.
You are responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you select your subscription package (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Trala for the Services until Trala accepts your order by a confirmatory email, or other appropriate means of communication.
Trala’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Trala, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Trala for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Trala is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.4 Automatic Renewal.
9.5. Free Trials and Other Promotions.
Any free trial or other promotion that provides access to the Services at no charge must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.
You agree to indemnify and hold Trala, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Trala Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Trala Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. Trala reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Trala in asserting any available defenses. This provision does not require you to indemnify any of the Trala Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your subcription, the Terms or your access to Trala Properties.
11. Disclaimer of Warranties and Conditions.
11.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TRALA PROPERTIES IS AT YOUR SOLE RISK, AND TRALA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TRALA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) TRALA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) TRALA PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF TRALA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF TRALA PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH TRALA PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS TRALA PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TRALA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TRALA OR THROUGH TRALA PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Trala may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Trala’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2 No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT TRALA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TRALA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TRALA PROPERTIES. YOU UNDERSTAND THAT TRALA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF TRALA PROPERTIES.
12. Limitation of Liability.
12.1 Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TRALA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH TRALA PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TRALA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF TRALA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE TRALA PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH TRALA PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON TRALA PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO TRALA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TRALA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TRALA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TRALA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability.
UNDER NO CIRCUMSTANCES WILL TRALA PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Trala by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TRALA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TRALA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TRALA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content.
12.4 Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRALA AND YOU.
13. Procedure for Making Claims of Copyright Infringement.
It is Trala’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Trala by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Trala Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Trala Properties of the material that you claim is infringing; (4) your address, telephone number and email address; (5) a written 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; and (6) 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. Contact information for Trala’s Copyright Agent for notice of claims of copyright infringement is as follows: Vishnu Indukuri, 222 W Merchandise Mart Plaza, Ste. 1212 Trala, Chicago IL, 60654 USA. Email: email@example.com.
If Trala becomes aware of any possible violations by you of the Terms, Trala reserves the right to investigate such violations. If, as a result of the investigation, Trala believes that criminal activity has occurred, Trala reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Trala is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Trala Properties, including Your Content, in Trala’s possession in connection with your use of Trala Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Trala, its users or the public, and all enforcement or other government officials, as Trala in its sole discretion believes to be necessary or appropriate.
In the event that Trala determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Trala Properties, Trala reserves the right to: (a) warn you via email (to any email address you have provided to Trala) that you have violated the Terms; (b) delete any of Your Content provided by you or your agent(s) to Trala Properties; (c) discontinue your registration(s) with the any of Trala Properties, including any Services or any Trala community; (d) discontinue your subscription to any Services; (e) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (f) pursue any other action which Trala deems to be appropriate.
15 Term and Termination.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Trala Properties, unless terminated earlier in accordance with the Terms.
15.2 Termination of Services by Trala.
15.3 Termination of Services by You.
If you want to terminate the Services provided by Trala, you may do so by terminating your subscription for all of the Services that you use.
15.4 Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve, but does not require, deletion of Your Content associated therewith from our live databases. Note, however, that any Pieces you uploaded to public forums may continue to be made available to other Trala users. Trala will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.5 No Subsequent Registration.
If your registration(s) with or ability to access Trala Properties, or any other Trala community is discontinued by Trala due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Trala Properties or any Trala community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Trala Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Trala reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. International Users.
Trala Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Trala intends to announce such Services or Content in your country. Trala Properties are controlled and offered by Trala from its facilities in the United States of America. Trala makes no representations that Trala Properties are appropriate or available for use in other locations. Those who access or use Trala Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Trala and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Trala, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Trala may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH TRALA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TRALA ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE TRALA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
17.2 Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to firstname.lastname@example.org or 222 W Merchandise Mart Plaza, Ste. 1212 Trala, Chicago IL, 60654. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Trala will pay them for you. In addition, Trala will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Trala will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Trala. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial.
YOU AND TRALA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Trala are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 18.7.
17.6 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following email address: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Trala username (if any), the email address you used to set up your Trala subscription (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Trala.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Trala makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Trala.
18. General Provisions.
18.1 Electronic Communications.
The communications between you and Trala use electronic means, whether you visit Trala Properties or send Trala emails, or whether Trala posts notices on Trala Properties or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Trala in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Trala provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Trala Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Trala Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Trala Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Trala Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Trala’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4 Force Majeure.
Trala shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5 Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Trala Properties, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.6 Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Trala agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.
18.7 Governing Law.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Where Trala requires that you provide an email address, you are responsible for providing Trala with your most current email address. In the event that the last email address you provided to Trala is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Trala’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Trala at the following email address: email@example.com. Such notice shall be deemed given when received by Trala by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.11 Export Control.
You may not use, export, import, or transfer Trala Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Trala Properties, and any other applicable laws. In particular, but without limitation, Trala Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Trala Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Trala Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Trala are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Trala products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.12 Accessing and Download the Application from iTunes.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a)You acknowledge and agree that (i) the Terms are concluded between you and Trala only, and not Apple, and (ii) Trala, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b)You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c)In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Trala and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Trala.
(d)You and Trala acknowledge that, as between Trala and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e)You and Trala acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Trala and Apple, Trala, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f)You and Trala acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g)Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
18.13 Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.14 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter