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Terms of Use

Last Updated Date: 8/8/2024

  1. ACCEPTANCE OF THE TERMS OF USE

It is important that you read all the terms and conditions of the following Terms of Use Agreement (“Terms”) carefully as they form a binding agreement between you and us. For purposes of these Terms, the words “GraphicAudio,” “we” and “us” refer to Graphic Audio, LLC (doing business as GraphicAudio). The following Terms, along with any supplemental terms that may be presented to you for your review and acceptance (collectively, the “Agreement”) specifies the terms and conditions under which you may use any GraphicAudio website (“Site”) or mobile application (“Application”) that links to these Terms or any product, service or content provided through such Site or Application (the Site and Application collectively, the “Services”). By registering for an account, clicking on the “I accept” or similar button, or by using, visiting, browsing, downloading, purchasing from, or otherwise using the Services, you accept and agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, APPLICATION OR SERVICES.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. We will notify you of any such changes by updating the Terms on our Site and any applicable Application and changing the “Last Updated Date” at the top of the Terms of Use Agreement. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL exercise best efforts to PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE SITE AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THE TERMS, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF WE PROVIDE A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH WE MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT GRAPHICAUDIO’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.

PLEASE BE AWARE THAT SECTION 15 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND GRAPHICAUDIO HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS. SECTION 15 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND GRAPHICAUDIO BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT IN ACCORDANCE WITH THESE TERMS: (1) YOU AND GRAPHICAUDIO WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. 

  1. GRAPHICAUDIO REQUIREMENTS

You represent that: (a) you are at least 18 years old (or at least 13 years old with parental permission to use the Services); (b) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction; (c) you are the credit card holder for your account, or have express permission of the cardholder to use their card if using it as a payment method; and (d) you will provide accurate and up-to-date essential personal information, and agree to maintain the currency of said information on your “My Account” page.

  1. LICENSE GRANT
    • 3.1. Application License. Subject to your compliance with the Terms, GraphicAudio grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on up to four mobile devices that you own or control and to run such copy of the Application solely for your own personal (i.e., non-commercial) 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 such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family group. You agree not to break DRM (Digital Rights Management) on DRM-protected Digital Content, or attempt to access the Digital Content outside of the Services and/or Application (i.e., you are not permitted to access or download Digital Content from the Application and open them in a different application or on any device that does not support the Application).
    • 3.2. License to GraphicAudio Content. When you purchase a digital format and/or streaming audio of digitized versions of audio entertainment recordings (e.g., full cast dramatization, narration, cinematic music and sound effects including artwork and information relating to such audio entertainment recordings), and upon your download or access of audio entertainment recordings and payment of any applicable fees (including applicable taxes), GraphicAudio grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such audio entertainment recordings, and the related content made available to you (“Digital Content”) to your device(s) solely for your personal non-commercial use, subject to any restrictions communicated at the time of purchase. You will not sell, transfer, lease, modify, distribute or publicly perform the Digital Content in any manner and you will not exploit it commercially. You agree to not decompile, disassemble, or reverse engineer the Digital Content, or modify the Digital Content or create any derivative works therefrom. The license to the Digital Contents you purchase will continue for as long as your copy of such Digital Contents exists pursuant to these Terms.
    • 3.3. Updates. You understand that the Services are evolving. As a result, GraphicAudio may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that GraphicAudio may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
  1. REGISTRATION
    • 4.1. Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with GraphicAudio through the Services (“Account”), has a valid account on a social networking service (“SNS”) through which the user has connected to the Services (each such account, a “SNS Account”), or has a valid account with the provider of the Application for the user’s mobile device.
    • 4.2. Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services or the Application, you may link your Account with SNS Accounts by allowing GraphicAudio to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant GraphicAudio access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating GraphicAudio to pay any fees or making GraphicAudio subject to any usage limitations imposed by such SNS. By granting GraphicAudio access to any SNS Accounts, you understand that GraphicAudio may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, profile pictures, photos, images, information, comments, likes, recommendations, questions, messages, tags and other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be your User Content (as defined in Section 6.1) for all purposes of the Agreement. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or GraphicAudio’s access to such SNS Account is terminated by the SNS, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND GRAPHICAUDIO DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. GraphicAudio makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and GraphicAudio is not responsible for any SNS Content.
    • 4.3. Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (a) notify GraphicAudio immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or GraphicAudio has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, GraphicAudio has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. GraphicAudio reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by GraphicAudio, or if you have been previously banned from any of the Services.
    • 4.4. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of GraphicAudio.
    • 4.5. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
  1. PURCHASES OF DIGITAL CONTENT
    • 5.1. Prices. Except where noted otherwise, any list price displayed represents the full retail price listed on the GraphicAudio content itself, as determined by GraphicAudio, or as suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. Prices of all GraphicAudio are subject to change at any time in GraphicAudio’s sole discretion. All such pricing changes will be posted to the GraphicAudio Site.
    • 5.2. All Sales Final; Downloading and Risk of Loss; Availability of Digital Content. All sales of Digital Contents are final. We do not accept returns of Digital Contents. If you wish to maintain a permanent copy of your purchases, you can purchase a zip download option and will need to download them to your computer or external hard drive. Once you have purchased Zip Downloads, we highly recommend you to download the zip files containing the audio promptly from our website and make a back-up copy of it on your computer hard drives. If you are unable to complete a download after having reviewed our online help resources, please contact our customer service. You bear all risk of loss after purchase and for any loss of Digital Contents you have downloaded, including any loss due to a computer or hard drive crash. Purchased Digital Contents will generally continue to be available in your account, but may become unavailable due to potential content provider licensing restrictions or other reasons and GraphicAudio will not be liable to you if Digital Contents becomes unavailable for further download.
    • 5.3. Pre-Order Digital Contents. GraphicAudio’s price for Digital Contents that have not yet been released can fluctuate ahead of the release date. Your price is the price quoted to you when you placed the pre-order. If the price of the Digital Content you have pre-ordered is higher on the release date than from your pre-order date, GraphicAudio will honor the pricing of the pre-order date (i.e., the price at the time the order was originally placed). In other words, your credit card will be charged at the time of the pre-order at the price the Digital Content is at the time of pre-order and no refunds will be given if the price is lowered at any time after the pre-order. The Pre-order Pricing Policy only applies to not-yet-released items available for pre-order. The Pre-order Pricing Policy does not apply to other items that have already been released and are available for purchase and download.
    • 5.4. Cancellations. Active pre-orders can be cancelled by contacting customer support at [email protected] to request a cancellation. A customer support representative will then assist with cancelling the pre-order and providing a refund. If a pre-order was made using reward points credit, cancelling the pre-order will return the credit to your rewards account with the original days left (at the time of placing the pre-order) to the life of the reward point credit before expiry. Completed pre-orders are non-refundable. GraphicAudio reserves the right to modify or cancel pre-orders, with notice to you. Completed pre-orders are non-refundable. GraphicAudio reserves the right to modify or cancel pre-orders, with notice to you.
    • 5.5. Loyalty Rewards. GraphicAudio offers a loyalty rewards program. Under this program, customers earn points for each purchase made on the GraphicAudio website. These points can be used as a form of payment towards future purchases, including pre-orders. Loyalty points can be redeemed for discounts on purchases or pre-orders at checkout. The applicable number of points and their corresponding value will be clearly indicated. If you choose to cancel an order or pre-order for which loyalty points were redeemed, the corresponding points will be refunded to your loyalty program balance. Similarly, if a purchase made with loyalty points is refunded, the points used for that purchase will be re-credited to your account. The loyalty rewards points are non-transferable and have no cash value. The use of the loyalty rewards program is governed by the terms and conditions set forth on the Rewards Points and Discounts Page, which can be accessed https://www.graphicaudio.net/loyalty-program.
    • 5.6. Risk of Loss. All items purchased from GraphicAudio® are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
    • 5.7. Promotions. Promotional discount codes are one-use per customer account, unless otherwise stated. Codes must be used at checkout to apply discount and we are unable to apply the discount after the order has been placed. Codes have no cash value and cannot be used to adjust an amount paid on previous purchases. All prices are in $ (US Dollars). All promotions are subject to early expiration and any dates listed are the latest an offer will be valid until. We cannot be held responsible for typos. We reserve the right to change or end any offer at any time without notice. Most discounts cannot be combined with any other offer or promotion. Not all titles are available in every territory. Exclusions may apply at checkout. All advertised offers end around 11:59pm PT on the date listed, unless otherwise stated.
    • 5.8. Changes in Digital Content. Our library of Digital Contents is ever-changing, and we reserve the right to alter the Digital Contents available without notice. We do not guarantee that any Digital Contents will be made available (or continue to be available) on the website or through the Services. We cannot guarantee that the same Digital Contents will be available in all countries. You acknowledge that certain Digital Contents will only be available in select territories. We hope that when you travel, you’ll take the Application with you, but please be aware that you are solely responsible for all Internet access charges. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Digital Contents in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Digital Contents or if we are concerned that you may have violated these Terms), or for no reason at all and (ii) to remove or block any Digital Contents from the Services.
    • 5.9. Territorial Restrictions. Most downloads will, unless otherwise specifically designated, be available only to customers located in the United States and Canada for GraphicAudio.net. All other International customers may purchase from GraphicAudioInternational.net, except the following countries: Hong Kong, Syria, Russia, North Korea, Cuba, China, Iraq, Zimbabwe, Yemen, Venezuela, Somalia, Rwanda, Libya, Liberia, Lebanon, Sudan, Myanmar, Burma, Iran, Curacao, Congo (kinshasa), Congo ( Brazzaville), Vietnam, and Belarus. Some of our Content may be offered in limited territories, and we may use geo-filtering technology to restrict access outside of those territories. Not all downloads will be available for all countries. The Site will display the Digital Content that is available for download in your country.
  1. RIGHTS YOU GRANT
    • 6.1. Generally. Some areas of the Services allow Registered Users to post, publish, submit, upload, transmit, or otherwise make available certain Content on the Services (any such materials that a Registered User does make available or submit is referred to as “User Content”). You retain ownership of your User Content. Notwithstanding anything contained herein to the contrary, by submitting your User Content to any forums, comments, or any other area on the Services, you hereby expressly permit GraphicAudio to identify you by your username (which may be a pseudonym) as the contributor of your User Content.
    • 6.2. License Grant to GraphicAudio. Subject to any applicable Account settings that you select, you grant GraphicAudio a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display your User Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of your User Content that you submit to any “public” area of the Services. You agree that you, not GraphicAudio, are responsible for all of your User Content. You may not post a photograph of another person without that person’s permission. You represent and warrant that you are the creator and owner of your User Content, or that you have the necessary licenses, rights, consents and permissions to post or publish such User Content on or in the Services and to authorize GraphicAudio to exercise the rights and licenses granted by you under this Agreement.
    • 6.3. Feedback. We welcome you to share any feedback, suggestions, or ideas you have about GraphicAudio and our Services with us (“Feedback”). You agree that in sharing your Feedback, you hereby grant GraphicAudio an unrestricted, perpetual, irrevocable, non-exclusive, sublicensable, transferable, fully-paid, royalty-free right to use the Feedback as we see fit and in connection with any of our products and Services now known or hereinafter developed.
  1. REVIEWS AND OTHER USER CONTENT

We encourage all of our customers to write a review of their recent listens. In order to keep discussions respectful and to guard against spam and abuse, our team may evaluate such reviews. You acknowledge and agree that you have no expectation of privacy concerning the transmission of your User Content (including, without limitation, such reviews), including without limitation chat, text, or voice communications. You acknowledge that GraphicAudio has no obligation to pre-screen User Content, although we reserve the right in our sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to our monitoring of your User Content. We have zero tolerance for any reviews or other User Content that are deemed threatening or offensive in any way (e.g., sexist, racist, profane, graphic, violent, derogatory, defamatory, etc.). We will remove reviews that are not pertinent to the Digital Content at hand or serve merely as non-constructive insults to authors, narrators, or GraphicAudio. Our intention is never to censor opinions, but inappropriate or non-constructive reviews will be removed at the sole discretion of the GraphicAudio team. In the event that GraphicAudio pre-screens, refuses or removes any of your User Content, you acknowledge that GraphicAudio will do so for GraphicAudio’s benefit, not yours. Without limiting the foregoing, GraphicAudio shall have the right to remove any of your User Content that violates the Agreement or is otherwise objectionable. If your review is approved, it will appear live on the Site and Application within approximately three (3) business days of your submission.

  1. OWNERSHIP; COPYRIGHT LAWS AND INTELLECTUAL PROPERTY RIGHTS
    • 8.1. Services. The Services, including the Digital Contents are protected by intellectual property rights throughout the world. Except with respect to User Content, you agree that GraphicAudio and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and GraphicAudio software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
    • 8.2. Trademarks. GraphicAudio®, A Movie in Your Mind®, GRAPHICAUDIO ACCESS™, GA™ and other graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Graphic Audio, LLC, in the U.S. and/or other countries. GraphicAudio®’s trademarks and trade dress may not be used in connection with any product or service that is not GraphicAudio®’s in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits GraphicAudio®. All other trademarks not owned by GraphicAudio® that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by GraphicAudio®.
  1. PROHIBITIONS AND RESTRICTIONS

You may only use the Services for your own individual, personal and non-commercial purposes and you agree that you will not:

  • Use the GraphicAudio Services or related content to reproduce copyrighted materials
  • Copy, store, edit, change, prepare any derivative work of or alter in any way the GraphicAudio Services or related content
  • Auto-scrape the Site or Application
  • Download content by means other than the GraphicAudio proprietary software
  • Make the GraphicAudio Services or related content available over a network (other than GraphicAudio’s network) where it could be used by others
  • Provide your password to any other person
  • Share audio content with another person
  • Translate, reverse engineer, decompile, disassemble, modify or create derivative works based on content available through GraphicAudio Services, or any portion of them for your own personal or commercial use, except as expressly allowed under applicable law and these Terms
  • Rent, lease or sublicense, sell, transfer, distribute or publicly perform the GraphicAudio content in any manner
  • Improperly interact with Customer Service employees over email, telephone or in-app live chat; these include, but are not limited to, verbal or written harassment, sexual solicitation, and uttering threats
  • Use the GraphicAudio Services in any way that violates these Terms.

Content from the Services (including without limitation Digital Contents) may be used and played for your personal, non-commercial use only. You agree not to modify, reproduce, retransmit, transfer, distribute, sell, broadcast, make available to third parties or circulate the content to anyone or to exploit any such content for commercial or non-commercial purposes without the express prior written consent of GraphicAudio. Any collection and use of any product listings, descriptions, or prices; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools is prohibited.

  1. PAYMENT
    • 10.1. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. Payment is currently processed through Braintree (which includes Paypal, Apple Pay, Google Pay and Major Credit Cards) and Amazon Pay. We may change the payment processor at any time. You must provide GraphicAudio with a valid payment account (a “Payment Provider”) as a condition to purchasing from the Site. Your Payment Provider agreement governs your use of the payment account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing GraphicAudio with yourr payment account and associated payment information, you agree that GraphicAudio is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify GraphicAudio of any change in your billing address or payment account used for payment hereunder. GraphicAudio reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. Except as set forth in the Terms, all fees for the Services are non-refundable.
    • 10.2. Taxes. The payments required under these Terms do not include any Sales Tax (as defined below) that may be due in connection with the Digital Contents. If GraphicAudio determines it has a legal obligation to collect a Sales Tax from you in connection with the Terms, GraphicAudio may collect such Sales Tax in addition to the payments required hereunder. If any Services or products, or payments for any Services or products, under the Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to GraphicAudio, 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 GraphicAudio for any liability or expense GraphicAudio may incur in connection with such Sales Taxes. Upon GraphicAudio’s request, you will provide it 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 is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
    • 10.3. Outside Charges. GraphicAudio is not responsible for any outside charges that may be incurred while using our Services. This includes, but is not limited to, NSF charges for automatic withdrawals, foreign transaction fees, or any other charge that is not processed directly by GraphicAudio.
  1. PROMOTIONS
    • 11.1. Promo Codes. Promotional codes (“Promo Codes”) are for promotional use only and are void where prohibited by law. Promo Codes must be redeemed at GraphicAudio and are only redeemable for the promotion outlined in the promotional offer (which may include discounts on Digital Content purchases). Promo Codes expire as indicated on the terms transmitted with the Promo Code. Promo Codes may be subject to additional terms and conditions presented with the Promo Code. Promo Code recipients must have or open a GraphicAudio Account to redeem Promo Codes. Promo Codes are only valid for one time use. Promo Codes cannot be resold, transferred for value, redeemed for cash except where required by law. Resale of a Promo Code or use for unauthorized advertising, marketing, sweepstakes or other promotional purposes is strictly prohibited.
    • 11.2. Fraud. GraphicAudio will have the right to close customer accounts and bill alternative forms of payment if a fraudulently obtained Promo Code is redeemed and/or exchanged for GraphicAudio products and Services.
  1. INDEMNIFICATION

You agree to indemnify and hold GraphicAudio, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “GraphicAudio Party” and collectively, the “GraphicAudio Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your User Content; (b) your use of any Service in violation of the Terms; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. GraphicAudio 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 agree to fully cooperate with GraphicAudio in asserting any available defenses. This provision does not require you to indemnify any of the GraphicAudio Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms and/or your access to the Services.

  1. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GRAPHICAUDIO DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANT ABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. GRAPHICAUDIO MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE AND AGREE THAT GRAPHICAUDIO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GRAPHICAUDIO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

  1. LIMITATION OF LIABILITY
    • 14.1. DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL GRAPHICAUDIO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT GRAPHICAUDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A GRAPHICAUDIO PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A GRAPHICAUDIO PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A GRAPHICAUDIO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    • 14.2. CAP ON LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, GRAPHICAUDIO PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO GRAPHICAUDIO BY YOU DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR 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 GRAPHICAUDIO PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A GRAPHICAUDIO PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A GRAPHICAUDIO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    • 14.3. USER CONTENT. EXCEPT FOR GRAPHICAUDIO’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN GRAPHICAUDIO’S PRIVACY POLICY, GRAPHICAUDIO ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
    • 14.4. EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    • 14.5. BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GRAPHICAUDIO AND YOU.
  1. ARBITRATION AGREEMENT

Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.

  • 15.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and GraphicAudio agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the Application, or the Terms and prior versions of the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and GraphicAudio may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or GraphicAudio 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). For purposes of this Arbitration Agreement, Dispute will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
  • 15.2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and GraphicAudio. If that occurs, GraphicAudio is committed to working with you to reach a reasonable resolution. You and GraphicAudio agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and GraphicAudio therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. 
    The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to GraphicAudio that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at Graphic Audio, 7520 Standish Place, Suite 100, Rockville, MD 20855. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
  • 15.3. Waiver of Jury Trial. YOU AND GRAPHICAUDIO 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 GraphicAudio are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section titled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
  • 15.4. Waiver of Class and Other Non-Individualized Relief. YOU AND GRAPHICAUDIO AGREE THAT, EXCEPT AS SPECIFIED IN THE SECTION ENTITLED “BATCH ARBITRATION,” EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the section entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and GraphicAudio agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the state of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or GraphicAudio from participating in a class-wide settlement of claims.
  • 15.5. Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and GraphicAudio agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

    A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. 

    Unless you and GraphicAudio otherwise agree, or the Batch Arbitration process discussed in the section entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. 

    You and GraphicAudio agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

  • 15.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the section entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
  • 15.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the section entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the section entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
  • 15.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or GraphicAudio need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
  • 15.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and GraphicAudio agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against GraphicAudio by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

    All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by GraphicAudio.

    You and GraphicAudio agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

    This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

  • 15.10. 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 out to: Graphic Audio, 7520 Standish Place, Suite 100, Rockville, MD 20855, and via e-mail to: [email protected] within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your GraphicAudio Account (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 these Terms 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.
  • 15.11. Invalidity, Expiration. Except as provided in the section entitled “Waiver of Class or Other Non-Individualized Relief”, 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. You further agree that any Dispute that you have with GraphicAudio as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
  • 15.12. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if GraphicAudio makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to GraphicAudio at 7520 Standish Place, Suite 100, Rockville, MD 20855 and e-mailing [email protected], your continued use of the GraphicAudio Application and/or Services, including the acceptance of products and Services offered on the Application following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the GraphicAudio Application, the Services, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. GraphicAudio will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
  • 15.13. Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to the conflict of laws provisions thereof, and the United States of America, including the Federal Arbitration Act. You agree that, with the exception of claims subject to arbitration, any dispute between you and us arising from or relating to the subject matter of these Terms must be brought in the United States district court for the District of Maryland or the state courts of Montgomery County, Maryland, and you and we submit to the personal jurisdiction of the foregoing federal and state courts.                                                                                               
  1. TERM AND TERMINATION
    • 16.1. Term. 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 the Services, unless terminated earlier in accordance with the Terms.
    • 16.2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Terms commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Terms, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Terms.
    • 16.3. Termination of Services by GraphicAudio. We reserve the right to terminate or restrict your use of our Services, without notice or further liability, as set forth in these Terms or if we determine, in our sole discretion, that you have breached or will likely breach any of these Terms, including failure to pay your invoice on time, not following Customer Service instructions, or otherwise in our sole discretion. If we do terminate the provision of Services, we also reserve the right to refuse you as a customer, in our sole discretion, if you attempt to subscribe to our Services subsequently.
    • 16.4. Termination of Services by You. If you want to terminate the Services provided by GraphicAudio, you may do so by (a) notifying GraphicAudio at any time and (b) closing your Account for all of the Services that you use. ANY SUBSCRIPTION SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN.
    • 16.5. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including your User Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your User Content associated therewith from our live databases. GraphicAudio will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User 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. As contemplated by Section 5.2, if you have purchased Zip Downloads, we highly recommend you to download the zip files containing the audio promptly from our website and make a back-up copy of it on your computer hard drives.. Subject to the applicable terms of these Terms, Your rights to use the downloaded content shall survive for so long as you have the back-up copy.
  1. 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 or Google Play (each, an “App Store”). You acknowledge that the Terms is between you and GraphicAudio and not with the App Store. GraphicAudio, not the App Store, is solely responsible for the Services, 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 the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, 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 it.

  • 17.1. Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
    • 17.1.1. You acknowledge and agree that (i) the Terms are concluded between you and GraphicAudio only, and not Apple, and (ii) GraphicAudio, 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.
    • 17.1.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
    • 17.1.3. 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 GraphicAudio 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 GraphicAudio.
    • 17.1.4. You and GraphicAudio acknowledge that, as between GraphicAudio 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.
    • 17.1.5. You and GraphicAudio 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 GraphicAudio and Apple, GraphicAudio, 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.
    • 17.1.6. You and GraphicAudio 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.
    • 17.1.7. 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.
  1. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

It is GraphicAudio’s policy to terminate membership privileges of any member who repeatedly infringes copyrights upon prompt notification to GraphicAudio 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 the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) 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 (f) 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 GraphicAudio’s Copyright Agent for notice of claims of copyright infringement is as follows: [email protected].

  1. GENERAL PROVISIONS
    • 19.1. Electronic Communications. The communications between you and GraphicAudio may take place via electronic means, whether you visit the Services or send GraphicAudio e-mails, or whether GraphicAudio posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from GraphicAudio in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that GraphicAudio 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
    • 19.2. Third-Party Services. The Services may contain links to third-party websites (“Third-Party Websites”), 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 the Services 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 GraphicAudio. GraphicAudio is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. GraphicAudio 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 any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave the Services, the Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
    • 19.3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without GraphicAudio’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    • 19.4. Force Majeure. GraphicAudio 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, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    • 19.5. Questions, Complaints, Claims. If you stream a Digital Content and find its content faulty, please contact our Customer Service Team at [email protected]. If the file is determined to be flawed, we will replace the file. If the file is determined to be sound and the problem has occurred on the user end, we will attempt to help resolve the problem. If you have any other questions, complaints or claims with respect to the Services, please contact our Customer Service Team at [email protected]. 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.
    • 19.6. Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
    • 19.7. Notice. Where GraphicAudio requires that you provide an e-mail address, you are responsible for providing GraphicAudio with your most current e-mail address. In the event that the last e-mail address you provided to GraphicAudio is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, GraphicAudio’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to GraphicAudio at the following address: [email protected].
    • 19.8. Waiver. 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.
    • 19.9. Severability. If any portion of the Terms 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.
    • 19.10. Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services 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 the Services, 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 acknowledge and agree that products, services or technology provided by GraphicAudio 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 GraphicAudio products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
    • 19.11. International Users. The Services 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 GraphicAudio intends to announce such Services or Content in your country. The Services are controlled and offered by GraphicAudio from its facilities in the United States of America. GraphicAudio makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
    • 19.12. 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
    • 19.13. 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.

 

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