READ CAREFULLY: BY PURCHASING A SUBSCRIPTION, YOU AS THE “SUBSCRIBER” AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) WITH Elinava Technologies and Tinassist.com, xtinnitus.com, xtinnitus.com, and BEYONDTINNITUS.COM. (“BEYONDTINNITUS”). THIS AGREEMENT SETS FORTH THE TERMS OF SUBSCRIBER’S SUBSCRIPTION AND USE OF SOFTWARE AND SERVICES PROVIDED BY BEYONDTINNITUS, hereafter referred to as “Service”. IF SUBSCRIBER DOES NOT AGREE WITH ALL OF THESE TERMS, SUBSCRIBER WILL NOT BE ABLE TO PURCHASE A SUBSCRIPTION.
1. Definitions.
“BEYONDTINNITUS Services” means the provision of access to the electronic services provided over the Internet as described in BEYONDTINNITUS’s services description as updated from time to time (the “Services Description”) with the software providing those services at all times remaining on BEYONDTINNITUS’s server.
“Licensed Software” means the BEYONDTINNITUS Site.
“Services” means BEYONDTINNITUS Services and Third-Party Services together.
“Subscription” means access to the Licensed Software, Services and Support, at the level that Subscriber selects when places its order (or any subsequent order), for a defined period as set forth in the applicable order and includes the Initial Subscription Term and each Renewal Subscription Term (each as defined below in Section 8), collectively.
“Support” means the technical support on the use of BEYONDTINNITUS and the Services as described in BEYONDTINNITUS’s support policy as updated from time to time (the “Support Policy”).
“Third-Party Services” means the provision of access to the electronic services provided over the Internet through the BEYONDTINNITUS Services as described in the Services Description and where third parties supply the software providing those services with such software at all times remaining either on BEYONDTINNITUS’s server or on the servers of the third-party licensors.
“User(s)” shall mean Subscriber’s employees, consultants, contractors or agents authorized to use the Services in accordance with the terms and conditions of this Agreement and for which an incremental cost is incurred in a Subscription.
3. License Restrictions.
Subscriber may not, nor permit Users or anyone else to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based of Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Services; or (vi) publish or disclose to third parties any evaluation of the Services without BEYONDTINNITUS’s prior written consent.
4. Services and Support.
BEYONDTINNITUS will provide Subscriber with the Services in accordance with the terms and conditions of the Services Description and the Support in accordance with the terms and conditions of the Support Policy (including the service levels specified in the Services Description and Support Policy), both at the Subscription level Subscriber selects when it places its order (or any subsequent order). Subscriber may add Users to Subscriber’s subscription to the Services by placing an order with BEYONDTINNITUS. Subscriber is responsible for all activity occurring under Subscriber’s User’s accounts. Subscriber shall notify BEYONDTINNITUS immediately of any unauthorized use of any password, account, copying or access to the Services. User accounts cannot be shared or used by more than one individual User but may be reassigned to new Users replacing former Users.
5. Acceptance.
The Services will be deemed accepted upon BEYONDTINNITUS’s provision of the license key to Subscriber that enables Subscriber to use the Services.
6. Intellectual Property Rights.
BEYONDTINNITUS or its licensors retain all right, title and interest in and to the Services. Subscriber shall do nothing inconsistent with BEYONDTINNITUS’s or its third-party licensors’ title to the Services and the intellectual property rights embodied therein including, but not limited to, transferring, loaning, selling, assigning, pledging, or otherwise disposing, encumbering, or suffering a lien or encumbrance upon or against any interest in the Services. The Services do contain copyrighted material, trade secrets and other confidential material of BEYONDTINNITUS or its licensors.
7. Subscription Term.
This Agreement shall be effective as of the date that Subscriber accepts this Agreement by clicking on the “I agree” button (the “Effective Date”). The “Initial Subscription Term” will be for the period specified in the applicable order and shall commence on the Effective Date. Upon the expiration of the Initial Subscription Term, this Agreement will automatically renew for successive renewal subscription terms (each a “Renewal Subscription Term”) equal in duration to the Initial Subscription Term at BEYONDTINNITUS’s then current Subscription fees.
8. Termination.
Subscriber may terminate this Agreement at the end of the Initial Subscription Term or a subsequent Renewal Subscription Term by notifying BEYONDTINNITUS in writing any time prior to the end of the then-current term. BEYONDTINNITUS may terminate this Agreement without cause at any time by notifying Subscriber in writing at least thirty (30) days prior to such termination. BEYONDTINNITUS may terminate Subscriber’s use of the Services if, in BEYONDTINNITUS’s sole discretion, Subscriber breaches or otherwise fails to comply with this Agreement and Subscriber has not cured such breach within thirty (30) days of BEYONDTINNITUS’s notice specifying the alleged breach. BEYONDTINNITUS may terminate this Agreement and/or Subscriber’s access to the Services if Subscriber’s non-payment of any fees owed to BEYONDTINNITUS that are delinquent by thirty (30) days or more.
9. Effects of Termination.
Upon the termination or expiration of this Agreement for any reason: (i) BEYONDTINNITUS will no longer be obligated to provide the Services or the Support; and (ii) Subscriber shall immediately cease use of the Services. Subscriber’s obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and the terms of Sections 4, 7, 10, 11, 13(b) and 14 through 16 shall survive termination or expiration of this Agreement.
10. Confidential Information.
Subscriber and BEYONDTINNITUS agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, non-public technical and business information (“Confidential Information”) during the Subscription and for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.
11. Fees.
Subscriber shall pay all fees to BEYONDTINNITUS associated with the Subscription as set forth on the subscription overview. Subscriber shall pay for all fees ordered for an entire Subscription, whether or not the Subscriber uses the Services or all the Support to which it is entitled in the Subscription. Subscriber shall make future fee payments for renewal at the end of each expiring subscription period. Subscriber must provide BEYONDTINNITUS with a valid credit card or alternative payment form prior to receiving the Services or Support. All fees paid to BEYONDTINNITUS are non-refundable. BEYONDTINNITUS reserves the right to modify its fees, and notice of such changes will be posted on its subscription overview page and provided to Subscriber via the message notification function in the Services. BEYONDTINNITUS will automatically bill Subscriber’s credit card or alternative payment form in the billing frequency established by the length of Subscriber’s Initial Subscription Term. Subscriber agrees to provide BEYONDTINNITUS with complete and accurate billing and contact information. If invoiced by BEYONDTINNITUS, payments for such invoices are due net thirty (30) days. BEYONDTINNITUS may terminate the Subscription if the billing or contact information is false, fraudulent or invalid. Subscriber will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon BEYONDTINNITUS’s net income.
Subscriber agrees that BEYONDTINNITUS may charge unpaid fees to Subscriber’s credit card or otherwise bill Subscriber for unpaid fees. BEYONDTINNITUS shall be entitled to reimbursement of all reasonable collection costs incurred as a result of unpaid balances.
12. Warranty Disclaimer.
1.
EXCEPT AS EXPRESSLY PROVIDED IN THE SERVICES DESCRIPTION, BEYONDTINNITUS, THE SERVICES AND THE SUPPORT ARE PROVIDED TO SUBSCRIBER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BEYONDTINNITUS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF BEYONDTINNITUS OR THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) BEYONDTINNITUS , THE SERVICES OR SUPPORT WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) BEYONDTINNITUS , THE SERVICES OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND BEYONDTINNITUS IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13.
Limitation of Liability.
1.
Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY OR BEYONDTINNITUS’S LICENSORS OR PROVIDERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE BEYONDTINNITUS , THE SUPPORT OR THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.
Limitation of Damages. In no event shall BEYONDTINNITUS’s total liability to Subscriber for all damages, losses and causes of action (whether in contract, tort, including negligence, or otherwise) exceed THE AMOUNT THAT SUBSCRIBER PAID TO BEYONDTINNITUS DURING THE PRECEDING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. ADDITIONALLY, IN NO EVENT SHALL BEYONDTINNITUS’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
3.
Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
4.
Allocation of Risk. The sections on limitation of liability and disclaimer of warranties allocate the risks in the Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties.
14. Export.
Subscriber acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including the Licensed Software or the Services. Subscriber agrees that it will not export or re-export the Licensed Software or the Services without the appropriate United States or foreign government licenses.
15. General Provisions.
An individual acting on behalf of an entity represents that he or she has the authority to enter into this Agreement on behalf of the entity. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission, and addressed to the party to whom notice is given to BEYONDTINNITUS at its corporate headquarters and to Subscriber at its address set forth in the registration page (or such other address as either party may specify in writing). Subscriber shall not assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement, whether by merger, operation of law, or otherwise, without the prior written consent of BEYONDTINNITUS. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. This Agreement will be governed by and construed according to the laws of the Commonwealth of Massachusetts without regard to that body of law controlling conflicts of law. In the event of any dispute or claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the federal and state courts located in Orange county, California, as applicable. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral.
16. There is no guarantee that the Beyondtinnitus.com will reduce the loudness of your tinnitus. A very small percentage of our customers (less than 3%) have developed an increase in the loudness of their tinnitus. While this increase in loudness has been temporary in those customers, the increase in loudness can be permanent and may occur in you. None of our customers have reported a hearing loss or other physical or emotional damage, but that may occur to you. You hereby indemnify BEYONDTINNITUS, Elinava Technologies, all affiliated sites, its officers, and stockholders and agree to hold BEYONDTINNITUS, its officers and stockholders harmless from any claim, demand or damage caused by any change in the loudness or annoyance of your tinnitus, any change in your hearing, or any other physical or emotional damage or trauma caused by your use of the subscription, website, your computer, or your MP3 player connected in any way with BEYONDTINNITUS.
17.1 You hereby agree that your use of the Service shall at all times be subject to the terms and conditions as set out herein. If you are not willing to agree to these provisions, you must NOT use the Service.
17.2 Upon successful registration for the Service, you will be issued with a username and password. You agree to immediately notify us of any unauthorised use of your password or any other breach of security. You further agree that we will not be liable to you or any other party whatsoever in respect of any losses or damages resulting from someone else using your password, whether with or without your knowledge. However, you could be held liable for losses or damages incurred by us or any third party due to someone else using your password. Your credit card will be charged for a 6-month subscription if we determine that someone with your knowledge is using the service with your username and password.
17.3 We reserve the right at any time and from time to time to modify or discontinue, either temporarily or permanently, the Service (or any part thereof), with or without notice to you and you agree that we will not incur any liability, of whatsoever nature, to you for any such occurrence.
17.4 We will, at our own discretion, determine the period and level of support, if any, offered with regard to the Service and we make no representations and give no warranties, of whatsoever nature, in this regard.
Service Availability
18. While we will use reasonable endeavors to keep the Service available at all times, you acknowledge that we make no guarantees, of whatsoever nature, in respect of the availability of the Service and that we will not be liable to you or any other party whatsoever in respect of any loss or damages suffered as a result of the unavailability of the Service for any reason whatsoever.
Breaches of these Terms and Conditions
19.1 Should we believe you to be in breach of any of these terms and conditions, we will be entitled, but not obliged, to exercise any rights that we may have in law and to respond to such breach and/or any complaint lodged against you in one or more of the following manners:
19.2 issue a warning;
19.3 suspend or terminate your access to and/or use of the Service;
19.4 claim immediate payment of all costs incurred by us in exercising our rights in terms of this clause;
19.5 institute legal proceedings against you or any third party, including a claim for any loss or damages, whether direct or indirect, sustained by us as a result of your breach and/or any complaint lodged against you; and
19.6 respond to the matter in any other manner deemed appropriate by us.
Indemnity
20.1 You understand and agree that all material of whatsoever nature, sent or received by you through the Service, is the sole responsibility of the party from whom such material originates. Accordingly, we do not guarantee the accuracy, integrity or quality of such material and under no circumstances whatsoever will we be liable in any way for any material, including (without being limited to) any errors or omissions, or any loss or damages of any kind incurred as a result of or in any way relating to such material.
20.2 You further understand and agree that we will not, under any circumstances, be liable for any loss or damages, of whatsoever nature, resulting from the unavailability of the Service, your use of, or inability to use the Service, unauthorised access to, or alteration of your usage through the Service, or any other matter relating to the Service.
20.3 The entire risk relating to the use of the Service is borne by you and you assume full responsibility and liability for all claims, losses and damages arising as a direct or indirect result of your use of the Service. You understand that the Service is provided on an “as is” and “as available” basis and that we give no warranties of any kind, whether express or implied, with regard to the Service. Accordingly, we assume no responsibility or liability for timeliness, deletion, mis-delivery, corruption or failure to store any information or other material maintained or used by or through the Service.
20.4 You hereby indemnify us and agree to hold us harmless from any claim, demand or damage asserted by any third party due to or arising out of your use of the Service.
20.5 You hereby indemnify us (BEYONDTINNITUS, Elinava Technologies, all affiliated websites, its officers and stockholders) and agree to hold us harmless from any loss or damage of whatever nature and howsoever arising from your use of the Service and/or failure to comply with these terms and conditions and/or any other requirements that we may impose from time to time.
20.6 You hereby agree that we will not, under any circumstances whatsoever, be liable for any indirect, consequential, special or incidental loss or damages, howsoever arising from or in connection with the Service, even if advised of the possibility of such loss or damages and whether arising from negligence, breach of warranty or contract or otherwise.
20.7 BEYONDTINNITUS does not warrant, guarantee or make any representations regarding the currency, correctness, accuracy, reliability or any other aspect regarding characteristics or use of the Service. You accept sole responsibility and risk associated with the use and results of the Service, irrespective of the purpose to which such use or results are applied. In no event shall BEYONDTINNITUS be liable for any damages resulting from misconduct committed by us or any other third party.
Alterations to Terms and Conditions
21.1 We reserve the right to alter these terms and conditions at any time.
21.2 You acknowledge that by using the Service, you will be bound to the then current version of the terms and conditions (the “Current Version”) from time to time and that, unless stated otherwise in the current version, all previous versions will be superseded by the Current Version.
21.3 You are responsible for reviewing the Current Version each time you make use of the Service.
21.4 Without derogating from the a foregoing, and without imposing any obligation whatsoever on us, we reserve the right to give you notice of amendments of the terms and conditions. On receipt of notice of amended terms and conditions, you will be obliged to visit the terms of service section of the www.beyondtinnitus.com website and view the then Current Version.
21.5 A certificate signed by us (or by one of our directors, whose appointment, qualification and authority need not be proved) shall be prima facie proof of the date of publication and content of the Current Version and all previous versions of the terms and conditions.
Intellectual Property Rights
22.1 Beyondtinnitus.com and Elinava Technologies and the trade mark and logos are trademarks or registered trademarks of Elinava Technologies. Copyright with regard to the Service belongs to Elinava Technologies and Elinava Technologies’ rights in this regard are reserved. Unauthorised use of Elinava Technologies’ marks and logo’s is prohibited.
22.2 All materials contained in the www.beyondtinnitus.com website and its derivatives, which are created or developed on the basis of Elinava Technologies’s copyrighted material by any party rightfully licensed by Elinava Technologies or sublicensed by us, are the copyrighted property of Elinava Technologies or its affiliated companies. Except for any fair use for purposes of study, research, criticism and review, as permitted under applicable copyright legislation, no part of the aforementioned materials may in any form or by any electronic, mechanical, photocopying, recording or any other means be used, reproduced, stored in a retrieval system, broadcast or transmitted without the prior permission of Elinava Technologies.
22.3 All trademarks, service marks, logos, and trade names relating to the Services (the “Trademarks”) are proprietary to Elinava Technologies or its affiliates. You may not change any Trademark in any way, including (without being limited to) changes in the color, proportion or design, or removal of any words, artwork or trademark symbols. No part of any Trademark may in any form, alone or in combination with other marks, names or products, or by any electronic, mechanical, photocopying, recording or any other means be used, reproduced, broadcast or transmitted without prior permission from Elinava Technologies.
General
23.1 These terms and conditions shall in all respects be governed and construed in accordance with the laws of the County of Orange, State of California, the United States of America and all disputes, actions and other matters in connection herewith, shall be determined in accordance with such laws.
23.2 Failure to enforce any provision of these terms and conditions shall not be construed as a waiver of our rights, nor shall such failure in any way affect the validity of the whole or any part of these terms and conditions, nor prejudice our right to take subsequent action.
23.3 These terms and conditions constitute the entire agreement that applies to your use of the Service and no other provision shall be binding on us. No addition to, or variation of these terms and conditions (save for those effected under clause 21 above) shall be of any force or effect.
23.4 If any part of these terms and conditions is determined to be invalid or unenforceable, it shall not affect the remainder of the terms and conditions, which shall remain in full force and effect.
