1. LICENSE
1.1. Governing Agreement
The terms of this agreement (“Terms of Service” or “Terms”) govern the relationship between you and THX Ltd. (hereinafter “THX” or “Us” or “We”) regarding your use of THX’s THX tune-up™ mobile application and related services (the “Service”). In this agreement, “THX” means THX Ltd. located at 1255 Battery Street, Suite 100, San Francisco, California 94111.
1.2. Privacy Policy
Use of the Service is also governed by THX’s Privacy Policy, which can be found at http://www.thx.com/company-resources/thx-privacy-policy/ and is incorporated herein by reference. Your privacy is important to Us. We designed THX’s Privacy Policy to make important disclosures about how We collect and use your content and information and how you can use the Service to share such information with others. We encourage you to read the THX Privacy Policy carefully and use it to make informed decisions.
By creating an account or accessing or using the Service you accept and agree to be bound by these Terms of Service and consent to the collection, use and storage of your information as outlined in THX’s Privacy Policy.
1.3. Updates to the Terms of Service
THX reserves the right, at our discretion, to change, modify, add or remove portions of these Terms of Service at any time by posting the amended Terms on or within the Service. You may also be given additional notice, such as an e-mail message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective 30 days after they are initially posted. THX may also revise other policies, codes or rules at any time, and the new versions will be available at www.THX.com or in the Service. No amendment to the Terms of Service shall apply to any dispute of which THX had actual notice before the date of the amendment. Changes to the Terms of Service will always be prospective, not retroactive.
This agreement may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
If at any point you do not agree to any portion of the then-current version of our Terms of Service relating to your use of the Service, your license to use the Service shall immediately terminate and you must immediately stop using the Service.
To the extent the Terms of Service conflict with any other THX terms, policy, rules or codes of conduct, the terms contained in these Terms of Service shall govern.
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant THX policies, THX grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in Section 1.7 to access and use the Service on an Android device that you own or control solely for your own non-commercial entertainment purposes and as permitted by the terms and conditions established by Google Play. You agree not to use the Service for any other purpose.
1.5. Accessing the Service
By accessing or using the Service, you accept and agree to these Terms of Service. You warrant that you are not prohibited from receiving products of U.S. origin, including services or software.
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, an Android device that is suitable to connect with and use the Service.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
1.6. Account Information
When downloading or using Service, you may be requested or required to provide THX with certain personal information, which may include your name, zip code, e-mail address, home theater equipment and payment information. This information will be held and used in accordance with THX’s Privacy Policy and relevant notices, if any, provided at the point of information collection or use. You agree that you will supply accurate and complete information to THX.
1.7. License Limitations
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE IS A VIOLATION OF THESE TERMS AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
a. Create an Account or access the Service if you are under the age of 18;
b. Use the Service if you are located in a country embargoed by the United States or that has been designated by the U.S. Government as a “terrorist supporting” country;
c. Use the Service if you are on the U.S. Treasury Department’s list of Specially Designated Nationals or any other U.S. Government list of prohibited or restricted parties;
d. Use the Service for commercial purposes;
e. Use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone;
f. Use your Account to engage in any illegal conduct;
g. Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without THX’s written permission; and
h. Access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without THX’s permission.
You agree that you will not, under any circumstances:
i. Engage in any act that THX deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms or our policies;
j. Make improper use of THX’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel; or
k. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
l. Without THX’s express written consent, modify or cause to be modified any files that are a part of the Service;
m. Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service; or
n. Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by THX, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
OFFENSIVE OR INFRINGING CONTENT – You agree that you will not, under any circumstances:
o. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including THX employees, including THX’s customer service representatives; or
p. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a THX employee;
COMMERCIAL ACTIVITY – You agree that you will not, under any circumstances:
q. Without THX’s express written consent, use the Service or any part thereof for any commercial purpose;
r. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
UNAUTHORIZED USE OR CONNECTION TO THE SERVICE – You agree that you will not, under any circumstances:
s. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
t. Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service. THX may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
u. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device;
v. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
w. Bypass any robot exclusion headers or other measures We employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
x. Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (2) any connection using programs, tools, or software not expressly approved by THX;
y. Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by THX; or
z. Copy, modify or distribute rights or content or THX’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
COLLECTION AND PUBLICATION OF PERSONAL INFORMATION – You agree that you will not, under any circumstances:
aa. Solicit or attempt to solicit personal information from other users of the Service;
bb. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
cc. upload or transmit or attempt to upload or transmit, without THX’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.8. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, THX MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR THX SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
THX reserves the right to stop offering and/or supporting the Service or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, THX shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
1.9. Ownership
1.9.1. Patterns, Photographs and Service
The Service (including without limitation any computer code, artwork, audio-visual effects, server software, patterns, trailers, audio files, photographs) are copyrighted works and/or trademarks owned or licensed by THX. THX reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.
1.9.2. Accounts
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THX.
THX owns, has licensed, or otherwise has rights to use all of the content that appears in the Service.
2. Disclosure
Your information, and the contents of all of your online communications (including without limitation, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations; (iii) where We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of THX, including to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
3. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you to download and use the Service. YOU ACKNOWLEDGE THAT THX IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. THIRD PARTY TERMS OF AGREEMENT
4.1. Third Party Notices.
Portions of the Service may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for such third party software and other copyrighted material, and your use of such material is governed by their respective terms and you must comply with applicable third party terms of agreement when using the Service.
4.2. Third Party Advertisements
You understand that the Service may feature advertisements from THX or third parties.
4.3. Links to Third Party Sites and Dealings With Advertisers
THX may provide links on the Service to third party websites or vendors who may offer goods or services for sale. Any charges or obligations you incur in your dealings with these third parties are your responsibility. THX makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of THX and may collect data or solicit personal information from you. THX is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by THX of these linked sites.
5. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. THX may require that you accept updates to the Service you have installed on your Android device. You acknowledge and agree that THX may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service.
6. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
6.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER THX NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “THX PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE THX PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE THX PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE THX PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE THX PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID THX FOR THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID THX ANY AMOUNTS FOR THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THX IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
6.3. Indemnification
You agree to indemnify, save, and hold THX, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. THX reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify THX, and you agree to cooperate with THX’s defense of these claims. THX will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
7. DISPUTE RESOLUTION
7.1. General
If a dispute arises between you and THX, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, We strongly encourage you to first contact Us directly to seek a resolution by going to Customer Support. THX Customer Support can be reached at tuneupsupport@thx.com and (415) 492-3929 with any questions, complaints, or claims with respect to the Service. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
7.2. Law and Forum for Legal Disputes
This Agreement and any dispute arising out of or related to it or the Service shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against THX must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
8. GENERAL PROVISIONS
8.1. Assignment
THX may assign or delegate these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service without THX’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.
8.2. Supplemental Policies
THX may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
8.3. Entire Agreement
These Terms of Service, any supplemental policies and any documents expressly incorporated by reference herein, contain the entire understanding of you and THX, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Us with respect to the Service.
8.4. SEVERABILITY
You and THX agree that if any portion of these Terms of Service is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.
8.5. Language of the Terms of Service
If We provide you with a translation of the English language version of these Terms of Service or any other policy (collectively “THX Policies”), then you agree that the translation is provided for informational purposes only and does not modify the English language version of the THX Policies.
In the event of a conflict between a translation of the THX Policies and the English version, the English version of the THX Policies will control.
8.6. No Waiver
The failure of THX to require or enforce strict performance by you of any provision of these Terms of Service or failure to exercise any right under them shall not be construed as a waiver or relinquishment of THX’s right to assert or rely upon any such provision or right in that or any other instance.
The express waiver by THX of any provision, condition, or requirement of these Terms of Service shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by THX shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of THX.
8.7. Notices
We may notify you via postings on www.THX.com, and via e-mail or any other communications means to contact information you provide to Us. All notices given by you or required from you under these Terms of Service shall be in writing and addressed to: THX Ltd., Attn: LEGAL DEPARTMENT, 1255 Battery Street, Suite 100, San Francisco, California 94111.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
8.8. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to THX are of a unique and irreplaceable nature, the loss of which shall irreparably harm THX and which cannot be replaced by monetary damages alone. Accordingly, THX shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 6.2 (if any).
8.9. Force Majeure
THX shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of THX, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond THX’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
9. Attributions
THX, THX Tune-Up, the THX logo and the THX Deep Note audio logo are trademarks of THX Ltd. All rights reserved.
Version: November 7, 2013