TERMS OF USE

(Last modified on April 26, 2016)

1. Introduction, Definitions and Acceptance

Welcome to the TaoMix 2 Application and inookta Website. We hope you enjoy your use of our Services. These Terms of Use (the “TOU”) cover several different situations, so please refer to the following definitions for clarification:

Application” refers to TaoMix 2, a free app for iOS developed and owned by inookta. Application also includes any Application updates and upgrades that inookta may provide to you or make available to you, or that you obtain after the date you obtain your initial copy of the Application, to the extent that such items are not accompanied by a separate Terms of Use.

Device” refers to the handheld or tablet device onto which you downloaded the Application and are using the Services.

inookta” refers to inookta studio inc., a duly incorporated company in the province of Quebec, Canada. Where the present TOU refers to “inookta”, it may refer to inookta or its employees, officers, directors, subcontractors, agents or representatives, depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to inookta. inookta’s affiliates and subsidiaries, and all of our and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns may be collectively referred to as “Representatives”. In these TOU, a Website visitor or Services user may be referred to as “you”.

Services” are the software services that inookta has developed to allow you to create and explore Soundscapes, as more fully defined herein. The Services are generally available through the Application, although certain functions are available on the Website.

Website” is the website located at http://inookta.com which is owned and operated by inookta, and includes all subdomains, present and future. Without limiting the generality of the use of the Website, certain aspects of the Services are available on the Website.

Additional definitions may be made throughout these TOU, but they will be recognizable as they will be capitalized, bolded, and in quotation marks. Additional definitions may also be found in the Privacy Policy, and will have the same meaning in these TOU as they do there. The definitions found in these TOU shall also apply to the Privacy Policy.

By visiting or using the Website, or downloading, using or accessing the Application on your Device, you hereby accept to be bound by these TOU without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Website or Services. If you have downloaded the Application and do not agree to all the provisions of the TOU, you must delete the Application from your Device. The TOU are a legal and binding agreement between you and us.

In the context of the Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.

inookta reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website and / or Application following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect your relationship with us, you will be notified upon opening the Application.

The TOU should be read in conjunction with the Privacy Policy, as both these documents govern your use of the Website and / or Application.

If you have any questions about the TOU, please contact:

inookta Legal Services
legal@inookta.com

or:
inookta Legal Services
824 rue Gilford
Montréal (Québec)
H2J 1N9
Canada

2. General Code of Conduct for Use of the Website or Services

By visiting the Website and / or using the Services, you agree to:
  1. Not use the Website or Services in any manner that in any way violates these TOU;
  2. Not use the Website or Services in any manner that violates any intellectual property rights of inookta or any third party;
  3. Not use the Website or Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
  4. Not use the Website or Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to inookta or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether Personal Information or not) of inookta, other Services users, or any other third party;
  5. Not: (1) take any action that imposes or may impose (as determined by inookta in its sole discretion) an unreasonable or disproportionately large load on inookta’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or Services or any activities conducted on the Website or through the Services; (3) bypass any measures inookta may use to prevent or restrict access to the Website or Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Application; or (5) harvest or scrape any content from the Website or Application in an unreasonable manner;
  6. Use the Website and / or Services in good faith, and in compliance with all applicable local, provincial, national, and international laws.

3. Use of the Application

  1. The Application is licensed, not sold. inookta grants you the non-exclusive, non-transferable, non-sub-licensable, limited right and license to install and use the Application solely and exclusively for your personal use on the Device, or the use of any other third party with access to the Device that you control and with your permission, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for the Application.
  2. You may not use the Application in any manner that could damage, disable, overburden, or impair the Application (or servers or networks connected to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks connected to the Application).
  3. You agree that you are solely responsible for (and that inookta has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which inookta may suffer) of any such breach. Where a third party uses the Application on your Device, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility.

4. Privacy Policy and Permissions for the Application

  1. Our Privacy Policy explains how inookta treats your Personal Information (as that term is defined in the Privacy Policy) and protects your privacy when you use the Website or Application. By installing, accessing or using the Application or using the Website you explicitly agree to the use of your data in accordance with the Privacy Policy, which may be updated from time to time and without notice.
  2. By installing, accessing or using the Application or using the Website or Services, you consent to those information collection and usage terms.
  3. In addition to personal and non-identifiable information, the Privacy Policy also describes how the Application accesses functions of the Device that are not part of the Application and are developed by third parties. These are known as permissions, and you agree that inookta has the right to access third-party computer code on the Device in this manner and as described in the Privacy Policy.

5. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements

  1. You acknowledge and agree that (i) these TOU are concluded between you and inookta only, and not Apple, and (ii) inookta, not Apple, is solely responsible for the Application and content thereof. Your use of the Application must comply with the Apple App Store Terms and Conditions, which you are responsible to review from time to time.
  2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Services with respect to the Application.
  3. Apple will have no warranty obligation whatsoever with respect to the Application. As between inookta 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 inookta, or as further specified and limited hereinafter.
  4. You and inookta acknowledge that:
    • As between inookta and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
    • In the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, inookta, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified in section 3 above and elsewhere in this TOU.
    • Apple, and Apple’s subsidiaries, are third party beneficiaries of these TOU as related to your license of the Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the Application against you as a third party beneficiary thereof.
  5. 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.
  6. Without limiting any other of these TOU, you must comply with all applicable third party terms of agreement when using the Application.
  7. You acknowledge that updates to the iOS Application are subject to the approval of Apple, and inookta and its Representatives shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.

6. Description and Authorized Use of the Services, Your Responsibilities and Related Disclaimers

a. Use of the Services

Use of the Services requires no account creation and is free of charge with the exception of the fees as described in section 6c. herein, and subject only to your responsibilities as laid out in this section and elsewhere in these TOU.

b. Description of the Services

The Services allow you to create “Soundscapes”, a mix that you create by combining various sounds. The sounds used to create Soundscapes come from a variety of sources, including sounds we have created, sounds for which we have obtained licenses for use in the Services, sounds you create or record with your Device and sounds you import into the Application from other sources. These Soundscapes can be shared by you via various methods (as more fully outlined in the Privacy Policy), as the Services create a unique link on the Website which you may share from within the Application.

c. In-App Purchase Fees

The Application is free and comes loaded with certain sounds for you to use in creating Soundscapes. You may also purchase additional sounds in the form of “Sound Packs” via the process of In-App Purchase. When you make an In-App Purchase, you acknowledge that:

d. Your Imported and Created Sounds and Disclaimers

The Application allows you to import your own sounds, and to create sounds using your Device’s microphone, for use in creating Soundscapes. These sounds may include voice recordings. You acknowledge and agree that you shall not include in your imported or created sounds any speech that: (i) is unlawful, such as speech that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortuous; (ii) is racist, sexist, homophobic, or otherwise offensive to any minority or group; (iii) contains adult content; or (iv) contains any commercial solicitations. The guidelines in the present paragraph shall be known in these TOU as the “Speech Policy”.

You represent and warrant that you own the rights to those imported or created sounds, or have a license or other permission that allows you (i) to use those sounds in this manner, and (ii) to grant inookta the licenses described in section 7 below.

Without limiting the general Disclaimers found further in these TOU, inookta and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your violation of: (i) the Speech Policy; or (ii) the Intellectual Property Rights of any third party in violation of this section.

7. Proprietary Rights

In this section and elsewhere in the TOU, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

You acknowledge that: (a) the Application and Website contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) inookta and/or third parties own all right, title and interest in and to the Application and Website and content that may be presented or accessed through the Application and Website, including without limitation all Intellectual Property Rights therein and thereto, with the exception of user-created Soundscapes as described further below in this section of the TOU.

The Application is being licensed to you and you hereby acknowledge that no title or ownership in the Application is being transferred or assigned and these TOU should not be construed as a sale of any rights in the Application. All rights not specifically granted under these TOU are reserved to inookta and its licensors.

You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Application or Website, or content that may be presented or accessed through the Application or Website for any purpose, unless otherwise permitted by the TOU or the functionality of the Services; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Application or Website; or (iii) remove, obscure, or alter inookta’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Application or Website.

The content, arrangement and layout of the Website and Application, including but not limited to the trademarks, photos, logos, videos, audio (including the Sound Packs), images, text (in the form of plain text, HTML, or PDFs) and computer code (the “inookta Content”) are proprietary to inookta, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of inookta, or as permitted by the functionality of the Website or Services or these TOU. Any unauthorized use of the inookta Content found in the Website or Application or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and inookta may take action accordingly.

The above paragraph further applies to third party property used as part of the Website or Application, including but not limited to third party computer code. For the purposes of the present section, “computer code” includes source code, frameworks, CSS or JavaScript files, templates, modules, or any similar files.

If you choose to communicate to inookta suggestions for improvements to the Website or Services (collectively, “Feedback”), inookta shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to inookta and waive in favor of inookta, its successors and assigns all your moral rights in the Feedback, and agree to provide inookta such assistance as inookta may require to document, perfect, and maintain inookta’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to inookta, you are not entitled to any compensation or reimbursement of any kind from inookta under any circumstances.

Soundscapes that you create are proprietary to you. However, by using the Services, you hereby grant inookta a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, edit, modify, translate, copy, reproduce, transmit, distribute, display, and / or perform and otherwise fully exploit the Soundscapes in any media formats and through any and all media channels (whether known or unknown) without any compensation to you. You acknowledge and agree that once you have shared a Soundscape via the sharing function, you will be unable to remove the Soundscape from our servers. inookta retains the right, at our sole discretion, to remove your Soundscape(s) from our servers or remove the URL where a Soundscape is shared for any reason, including but not limited to whether you have violated these TOU in general or the Speech Policy in particular. You understand and agree that inookta may retain, but not display or distribute, server copies of Soundscapes where we have removed the sharing URL.

Apple, iOS, iTunes and iMessage are registered trademarks of Apple Inc.

8. Interruption of Service

From time to time, the Website or Services may be unavailable for brief periods of time for maintenance and / or modifications to the Website or Services. While we will endeavour to make this unavailability as brief as possible, inookta and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website or Services, and disclaims any responsibility thereto.

9. Termination of the Website or Services and the TOU

You agree that inookta, in its sole discretion, with or without cause, has the right (but not the obligation) to block your IP address or otherwise terminate your access to or use of the Website or Services (or any part thereof), immediately and without notice, for any reason, including, without limitation, if inookta believes that you have acted inconsistently with the letter or spirit of the TOU or the Privacy Policy.

inookta may also, in its sole discretion and at any time, discontinue providing the Website or Services, or any part thereof, with or without notice. You agree that inookta and its Representatives shall not be liable to you or any third party for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from termination of your access to the Website or Services, or from inookta’s termination of the Website or Services, or any part thereof.

Termination of the Website or Services or your access to the Website or Services shall terminate the present TOU as between you and inookta. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.

10. External Links

From time to time inookta may provide links to other websites or services. Links from the Website or Application may take you to websites or services not covered by these TOU. When you access third party resources on the Internet in this manner, you do so at your own risk. inookta provides those links as a convenience to you and inookta takes no responsibility for your use of those other websites or services or protection of your privacy (including collection of your personal information) on those other websites or services. We encourage you to check the Terms of Use and / or Privacy Policy of any website or service you visit. inookta does not make any claim or warranty whatsoever about the content of those websites or services to which we link, or any products or services available through those websites or the third parties operating those websites.

In no way will inookta and its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.

11. Disclaimer of Warranties

You expressly understand and agree that your use of the Website or Services, the information thereon (whether provided by inookta or third parties) or any activity arising from your use of the Website or Services or the information thereon or the materials downloaded therefrom (including the Soundscapes whether created by you or other users) is at your sole risk. The Website or Services, any materials downloaded therefrom, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or Services or any other functionalities of the Website or Services, or losses or damages (financial or otherwise) resulting from (i) your use of the Website or Services, the information thereon, any materials downloaded therefrom, or (ii) any activity arising from the use of the Website or Services, the information thereon or any materials downloaded therefrom.

The information or resources provided through the Website or Services, written or produced by inookta staff, freelance writers or other subcontractors are known to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website or Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and inookta and its Representatives shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or through the Services.

inookta expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website or Services, the information thereon or any materials downloaded therefrom, and any third party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. inookta, and its directors, officers, employees, agents, suppliers, partners and subcontractors do not warrant that: (i) the Website or Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Website or Services is free of viruses or other harmful components; or (iv) the results of using the Website or Services or any content downloaded therefrom will meet your requirements.

12. Limitation of Liability

Inookta and its Representatives shall not be liable and assumes no responsibility for any loss or damages arising from or in relating to the information on the Website or Services or downloaded therefrom, the use of the Website or Services, activities arising from your use of the Website or Services, or any third party materials on the Website or available through the Services.

To the maximum extent permitted by law, in no event will Inookta and its Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Website or Services or your use, misuse or inability to use the Website or Services, even if inookta has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.

Notwithstanding anything to the contrary in the TOU, in no event will inookta’s aggregate liability for any claims in connection with your use of the Services exceed the greater of (i) CAD$ 100 or (ii) the aggregate amount of the In-App Purchase(s) you made.

13. Indemnity

Notwithstanding any other term of the TOU or any act or failure to act by inookta or its Representatives or subcontractors, you agree to indemnify, defend and hold harmless inookta and its Representatives, or its affiliates and their Representatives, from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of (i) your use of or connection to the Website or Services or the information thereon or information downloaded therefrom; (ii) your participation in any activities arising from the Website or Services (including your Soundscapes) or the information thereon or information downloaded therefrom; (iii) your violation of, or failure to perform your obligations under the TOU or the Privacy Policy; or (iv) your violation of any rights of a third party.

14. Governing Laws and Jurisdiction

Use of the Website or Services shall be governed by and construed in accordance with the laws of the Quebec in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and inookta shall be brought exclusively in the courts located in the Judicial District of Montreal, Quebec, Canada. The foregoing choice of jurisdiction and venue shall not prevent inookta from seeking injunctive relief with respect to a violation of intellectual property rights, enforcement or recognition of any award or order in any appropriate jurisdiction. You expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to these TOU nor to any dispute arising therefrom.

15. Law Enforcement

inookta reserves the right, without any limitation whatsoever, to: (i) investigate any suspected breaches of the Website and the Application security or its information technology or other systems or networks; (ii) investigate any suspected breaches of the TOU or violations of any additional terms, conditions or rules posted in connection with a particular service or feature on the Website or the Application; (iii) involve and cooperate with law enforcement authorities in investigating any such matters; and (iv) prosecute violators of the TOU to the full extent permitted by applicable law.

16. Miscellaneous Provisions

  1. The TOU, in conjunction with the Privacy Policy, constitute the entire agreement between you and inookta with respect to your use of the Website or Services, superseding any prior agreements between you and inookta. When you download the Application, you are also subject to the Terms of Service and Privacy Policy of the application distribution system you used to download the Application (i.e. iOS App Store, hereinafter “Third Party Application Distributor”). We strongly suggest reading those documents prior to installing the Application. inookta and its Representatives shall in no way be held responsible for any losses or damages, whether pecuniary or otherwise, to you or any third party for your failure to adhere to the Terms of Services and / or Privacy Policy of any Third Party Application Distributor when downloading and / or using the Application.
  2. inookta shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond inookta’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation.
  3. If any provision of the TOU or Privacy Policy is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU or Privacy Policy, as the case may be, shall remain in full force and effect.
  4. The section titles in the TOU and Privacy Policy are for convenience only and have no legal or contractual effect.
© inookta studio Inc. 2016