Terms of Service

Together with its subsidiaries and other affiliates, Smart Vinyl, Inc., a Delaware corporation (“Smart Vinyl”), makes available the “Site” (websites including, without limitation, audiophysical.com and all subdomains), “Software” (software and mobile applications), “Collectibles” (audio-physical devices) and “Services” (including, without limitation, streaming audio, digital locker, and a suite of software-as-a-service applications (which are comprised of various application programming interfaces and web applications that allow customers to upload or otherwise transmit media, communications, and data to, and generate results by processing that media, communications, and data using, the Services (such results, the “Output”).

When you use our Services, you agree to all of these terms. Your use of our Services is also subject to our Cookie Policy and our Privacy Policy which covers how we collect, use, share and store your personal information. By using our Services, you're agreeing to be bound by the terms of this Agreement.

This Contract applies to Smart Vinyl and Totem branded apps, communications, and other services that state that they are offered under this Contract ("Services"), including the offsite collection of data for those Services, such as our ads. Access to and use of Smart Vinyl's existing Site, Software, and Services, collectively referred to as ("Smart Vinyl Properties"), as well as any future Sites, Software, or Services provided by Smart Vinyl, are governed by this Terms of Service and License Agreement (this “Agreement”).

You agree that by clicking "Join Now", "Join Smart Vinyl", “Join Totem”, "Sign Up", "Sign in", "Log in", "Log on" or similar, registering, accessing, or using our services (described below), you are agreeing to enter into a legally binding contract with Smart Vinyl (even if you are using our Services on behalf of a company). If you do not agree to this contract ("Contract" or "User Agreement"), do not click "Create Account", "Log-in", "Login" or similar) and do not access or otherwise use any of our Services. If you wish to terminate this Contract, at any time you can do so by closing your account and no longer accessing or using our Services.

If you are an individual of Smart Vinyl Properties (as a “Member”), or are otherwise browsing the Site (if you have chosen not to register for our Services, you may access certain features as a "Visitor."), this Agreement is between you, individually, and Smart Vinyl.

All registered users of our Services are collectively referred to as "Members" and unregistered users are "Visitors".

1. Smart Vinyl

You are entering into this Contract with Smart Vinyl, Inc, which will be the controller of your personal data provided to, or collected by or for, or processed in connection with our Services.

As a Visitor or Member of our Services, the collection, use, and sharing of your personal data are subject to Smart Vinyl Privacy Policy (which includes a Cookie Policy and other documents referenced in our Privacy Policy) and updates.

1.1 About

Smart Vinyl is a media processing service, and the user takes full responsibility for any copyright laws that may apply to the use of the Service or the output generated by it. Smart Vinyl does not promote, endorse, share or publish any user-processed content. Please don’t copy, upload, or share content unless you have the right to do so.

1.2 Change

Smart Vinyl may make changes to the Contract. We may modify this Contract, our Privacy Policy, and our Cookies Policy from time to time. If we make material changes to it, we will provide you notice through our App, Site, or newsletters, or by other means, to offer you the opportunity to review the changes before they become effective. We agree that changes cannot be retroactive. If you object to any changes, you may close your account. Your continued use of Smart Vinyl Properties after we publish or send a notice about our changes to these terms means that you are consenting to the updated terms as of their effective date.

2. Obligations

2.1 Service Eligibility

Here are some promises that you make to us in this Contract:

You're eligible to enter into this Contract, and you are at least our "Minimum Age."

The Services are not for use by anyone under the age of 13.

To use the Services, you agree that: (1) you must be the "Minimum Age" (described below) or older; (2) you will only have one Smart Vinyl account, which must be in your real name; and (3) you are not already restricted by Smart Vinyl from using Smart Vinyl Properties. Creating an account with false information is a violation of our terms, including accounts registered on behalf of others or persons under the age of 13.

"Minimum Age" means 13 years old. However, if the law requires that you must be older in order for Smart Vinyl to lawfully provide the Services to you without parental consent (including using of your personal data) then the Minimum Age is such older age.

If your country is marked with an asterisk (*) in the chart below, and you require parent or guardian consent, your parent or guardian will enter into the contract on behalf of you.

2.2 Your Account

You will keep your password a secret.

You will not share an account with anyone else and will follow our rules and the law.

Members are account holders. You agree to: (1) use a strong password and keep it confidential; (2) not transfer any part of your account (e.g., files); and (3) follow the law and our list of Dos and Don'ts. You are responsible for anything that happens through your account unless you close it or report misuse.

2.3 Notices and Messages

You're okay with us providing notices and messages to you through our websites, apps, and contact information. If your contact information is out of date, you may miss out on important notices.

You agree that we will provide notices and messages to you in the following ways: (1) within the Service, or (2) sent to the contact information you provided us (e.g., email, mobile number). You agree to keep your contact information up to date.

3. Content

3.1 Types of Content

You acknowledge that any information, data, text, software, music, audio, photographs, graphics, video, messages, tags, and/or other materials accessible through Smart Vinyl Properties (collectively, “Content”), including the Service, is the sole responsibility of the party from whom such Content originated. This means that you, and not Smart Vinyl, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Service (“Your Content”), and that you and others Users of the Service, and not Smart Vinyl, are similarly responsible for all Content that you and they Make Available through the Service (“User Content”).

3.2 No Obligation to Pre-Screen Content

You acknowledge that Smart Vinyl has no obligation to pre-screen or monitor Content (including, but not limited to, User Content), although Smart Vinyl reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Smart Vinyl pre-screens, refuses, or removes any Content, you acknowledge that Smart Vinyl will do so for Smart Vinyl’ benefit, not yours. We reserve the right but are not obligated, to remove or disable access to any content, including Your Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

3.3 Storage

Unless expressly agreed to by Smart Vinyl in writing elsewhere, Smart Vinyl has no obligation to store any of Your Content that you Make Available on Smart Vinyl Properties. Smart Vinyl has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving the use of Smart Vinyl Properties. Certain portions of the Service may enable you to specify the level at which such Service restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Smart Vinyl retains the right to create reasonable limits on Smart Vinyl' use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Smart Vinyl in its sole discretion. Smart Vinyl does not control, verify, or endorse the content that you or others store on Smart Vinyl Properties. You are responsible for: (a) all content, including your content and others’ content, that you store and share through the Services, and (b) that you have all the rights you need in relation to the content and information stored on Smart Vinyl Properties. In addition, by storing, processing, using, or transmitting content you confirm that you will not violate any law or these Terms of Service.

3.4 Your Content

You or a third-party licensor, as appropriate, retain all intellectual property rights to Your Content. Smart Vinyl does not claim ownership of Your Content. This also means that you are responsible for protecting any of your rights in Your Content and we need not enforce a violation of these Terms by another User as it pertains to your User Content, although we reserve the right to terminate the rights of such Users to use the Service in accordance with our Copyright Complaints & Removal Policy. When you as a User post, share, or publish Your Content on or in the Smart Vinyl Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.

3.5 License to Your Content

You or a third-party licensor, as appropriate, own Your Content. As a result, we need your permission (in legal language, this is called a license) to use Your Content to provide our Site, Software, and Services to you. You grant us a license to Your Content for the limited purposes of:

• Operating and improving the Site, Software, and Services (for example, your report or rejection of lyric suggestions may help improve our content filters);
• Protecting the Site, Software, and Services (for example, we may analyze patterns in usage to prevent abuse);
• Customizing the Site, Software, and Services (for example, we may use Your Content to create personalized suggestions); and
• Developing new technologies and services (for example, creating our mood detector).

Subject to any applicable account settings that you select, other than with respect to Assets (as defined below) which will be licensed under the Smart Vinyl Assets Terms of Use, you grant Smart Vinyl a fully-paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free (meaning we don’t pay you for it), non-exclusive (meaning you own Your Content and can license it to other people and companies) and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, create derivative works of (such as providing writing suggestions and rhyming words), publicly perform, permit (this is called a sublicense) our service providers to process Your Content solely for the purpose of helping us provide Smart Vinyl Site, Software, and Services to you, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Smart Vinyl Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Smart Vinyl Properties. You agree that you, not Smart Vinyl, are responsible for all of Your Content that you Make Available on or in Smart Vinyl Properties. You also agree that when you share your content, you may be allowing other people to access and use your content in any way without further restriction or compensation to you. You may not post or submit for print services a photograph of another person without that person’s permission. The license you give us is only for the above purposes. Smart Vinyl will not commercially sublicense or sell Your Content to third parties.

3.6 Through-To-The-Audience Rights

All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of third-party sites will not have any separate liability to you or any other third party for Your Content Made Available on such third-party sites via the Service.

3.7 Username

Notwithstanding anything contained herein to the contrary, by submitting Your Content to any feed, forums, comments, or any other area on Smart Vinyl Properties, you hereby expressly permit Smart Vinyl to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

3.8 User Content Generally

Posting User Content, including Assets, is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. If you find objectionable content in any User Content, then please notify us by contacting us at help@audiophysical.com You are solely responsible for the content of any User Content.

3.10 Content Provided by Other Users

We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. By using Smart Vinyl Properties you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.

3.12 User Disputes

Smart Vinyl is not responsible for any disputes or disagreements between you and any third party you interact with using Smart Vinyl Properties, including Users. You assume all risks associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among you and other Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.

3.13 Removal of User Content

You can remove Your Content by specifically deleting it. You should know that in certain instances, some of Your Content, (such as posts or comments you make), may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

3.14 Ownership

All intellectual property rights in and to Your Content are and shall remain your property, and Smart Vinyl shall acquire no right of ownership with respect to Your Content.

All intellectual property rights in and to the Software, Site, and Services and other Smart Vinyl Intellectual Property are and shall remain the sole property of Smart Vinyl and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other Smart Vinyl Intellectual Property except as specified in this Agreement. Without limiting the foregoing, you acknowledge that the Software and the Service and the inventions, know-how, and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Smart Vinyl and its affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Smart Vinyl. You may from time to time provide Smart Vinyl with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how, and/or any feedback regarding the Services, the Software, the Site, and/or any of Smart Vinyl' related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between you, Smart Vinyl and, if applicable, your Multi-user Subscriber, all Feedback shall be exclusively owned by Smart Vinyl, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result, Smart Vinyl shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Multi-user Subscriber (if applicable) or any other person or entity.

4. Service Availability

We may change or end any Smart Vinyl Properties or modify our prices prospectively.

We may change, suspend, or discontinue any of our Smart Vinyl Properties.. You acknowledge that Smart Vinyl may modify the features and functionality of Smart Vinyl Properties during the Term.

We will use commercially reasonable efforts to make the Smart Vinyl Properties available 24 hours a day, 7 days a week, except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, a Force Majeure Event.

We don't promise to store or keep showing any information and content that you've uploaded. Smart Vinyl is not a storage service. You agree that we have no obligation to store, maintain or provide you a copy of any media or information that you or others provide, except to the extent required by applicable law and as noted in our Privacy Policy.

4.1 Limits

We have the right to limit how you connect and interact with our Services.

Smart Vinyl reserves the right to limit your use of the Services, including the number of your connections, uploads, downloads, devices, and your ability to contact other Members. Smart Vinyl reserves the right to restrict, suspend, or terminate your account if you breach this Contract or the law or are misusing the Services (e.g., violating any of the Dos and Don'ts and service rate-limits).

4.2 Intellectual Property Rights

We're providing you with a notice about our intellectual property rights.

Smart Vinyl reserves all of its intellectual property rights in Smart Vinyl Properties. Trademarks and logos used in connection with Smart Vinyl Properties are the trademarks of their respective owners. Smart Vinyl, and "M" logos and other Smart Vinyl trademarks, service marks, graphics, and logos used for Smart Vinyl Properties are trademarks or registered trademarks of Smart Vinyl.

4.3 Automated Processing

We use data and information about you to make relevant suggestions to you and others. We use the information and data that you provide and that we have about Members to make recommendations for connections, content, and features that may be useful to you. For example, we use data and information about you to recommend and personalize features for you. Keeping your profile accurate and up to date helps us to make these recommendations more accurate and relevant.

5. Disclaimer and Limit of Liability

5.1 No Warranty

This is our disclaimer of legal liability for the quality, safety, or reliability of our Services.

SMART VINYL PROPERTIES ARE LICENSED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. SMART VINYL AND ITS AFFILIATES MAKE NO WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO SMART VINYL PROPERTIES, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

SMART VINYL AND ITS AFFILIATES DO NOT WARRANT THAT SMART VINYL PROPERTIES, SYSTEMS, AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, OR ERROR FREE OR WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, FREE OF HARMFUL COMPONENTS, OR SUCCEED IN RESOLVING ANY PROBLEM.

YOU AGREE THAT USE OF SMART VINYL PROPERTIES IS AT YOUR OWN RISK. YOU HAVE NO WARRANTY OR GUARANTEE UNDER THESE TERMS THAT THE OPERABILITY OF ANY OF SMART VINYL PROPERTIES WILL BE MAINTAINED WITH ANY SUBSEQUENT OR GENERALLY AVAILABLE VERSIONS OF SMART VINYL PROPERTIES OR THAT ANY VERSION OF SMART VINYL PROPERTIES WILL EVER BE MADE AVAILABLE OR MARKETED.

WE MAY DISCONTINUE PROVIDING SMART VINYL PROPERTIES OR ACCESS TO OUR SYSTEM OR MAY CHANGE THE NATURE FEATURES, FUNCTIONS, SCOPE, OR OPERATION THEREOF, AT ANY TIME AND FROM TIME TO TIME.

ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SMART VINYL PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SMART VINYL PROPERTIES OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

FROM TIME TO TIME, SMART VINYL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND AND MAY BE MODIFIED OR DISCONTINUED AT SMART VINYL’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

5.2 Exclusion of Liability

5.2.1 No Liability for Conduct of Third Parties

YOU ACKNOWLEDGE AND AGREE THAT THE SMART VINYL ENTITIES (AS DEFINED BELOW) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE SMART VINYL ENTITIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

5.2.2 No Liability for Conduct of Other Users

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SMART VINYL PROPERTIES. YOU UNDERSTAND THAT SMART VINYL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SMART VINYL PROPERTIES. SMART VINYL MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SMART VINYL MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SMART VINYL PROPERTIES.

5.2.3 Third-Party Materials

As a part of SMART VINYL Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for SMART VINYL to monitor such materials and that you access these materials at your own risk.

5.2.4 Limitation of liability and indemnification

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SMART VINYL, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SERVICE PROVIDERS, AND LICENSORS (COLLECTIVELY, “SMART VINYL ENTITIES”) INVOLVED IN CREATING, PRODUCING, OR DELIVERING SMART VINYL PROPERTIES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SMART VINYL OR ITS LICENSORS OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

SMART VINYL AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU IN CONNECTION WITH THIS CONTRACT FOR ANY AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE BY YOU TO SMART VINYL FOR THE SERVICES DURING THE TERM OF THIS CONTRACT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO $100.

THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A SMART VINYL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SMART VINYL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SMART VINYL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. FOR UK USERS, COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CAN NOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.

To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify the Smart Vinyl from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Your Content; (b) your unauthorized use of, or misuse of, Smart Vinyl Properties; (b) your violation of any portion of this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right (including, without limitation, in connection with any use of User Content); or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of those claims.

5.3 Exclusions

The limitations of liability in this Section 4 are part of the basis of the bargain between you and Smart Vinyl and shall apply to all claims of liability (e.g., warranty, tort, negligence, Contract, and law) even if Smart Vinyl or its affiliates has been told of the possibility of any such damage, and even if these remedies fail their essential purpose.

These limitations of liability do not apply to liability for death or personal injury or for fraud, gross negligence, or intentional misconduct, or in cases of negligence where a material obligation has been breached, a material obligation being such which forms a prerequisite to our delivery of services and on which you may reasonably rely, but only to the extent that the damages were directly caused by the breach and were foreseeable upon conclusion of this Contract and to the extent that they are typical in the context of this Contract.

6. Termination

This Agreement shall continue until you delete your account, or until terminated by Smart Vinyl. View cancellation instructions at help@audiophysical.com.

Smart Vinyl may deny you access to all or any part of the Smart Vinyl Properties or terminate your account with or without prior notice if you engage in any conduct or activities that Smart Vinyl determines, in its sole discretion, violate this Agreement or the rights of Smart Vinyl or any third party, or is otherwise inappropriate. Without limitation, Smart Vinyl may deny you access to the Smart Vinyl Properties, or terminate this Agreement and your account, if your use of Smart Vinyl Properties exceeds the use limitations set forth under the section titled “Fair usage policy”.

Upon termination of your account(s) for any reason, your right to use the Services and Software and to access the Site and any of its content will immediately cease and all content in your account(s) will be deleted. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and miscellaneous provisions.

7. Governing Law and Dispute Resolution

In the unlikely event we end up in a legal dispute, you and Smart Vinyl agree to resolve it in New York courts using New York law.

This section shall not deprive you of any mandatory consumer protections under the law of the country to which we direct Services to you, where you have your habitual residence.

For others outside of Designated Countries, including those who live outside of the United States: You and Smart Vinyl agree that the laws of the State of New York, U.S.A., excluding its conflict of laws rules, shall exclusively govern any dispute relating to this Contract and/or the Services.

8. General Terms

Here are some important details about the Contract.

If a court with authority over this Contract finds any part of it unenforceable, you and we agree that the court should modify the terms to make that part enforceable while still achieving its intent. If the court cannot do that, you and we agree to ask the court to remove that unenforceable part and still enforce the rest of this Contract.

This Contract (including additional terms that may be provided by us when you engage with a feature of the Services) is the only agreement between us regarding the Services and supersedes all prior agreements for the Services.

If we don't act to enforce a breach of this Contract, that does not mean that Smart Vinyl has waived its right to enforce this Contract. You may not assign or transfer this Contract (or your membership or use of Services) to anyone without our consent. However, you agree that Smart Vinyl may assign this Contract to its affiliates or a party that buys it without your consent. There are no third-party beneficiaries to this Contract.

You agree that the only way to provide us legal notice is by submitting a message at the email address help@audiophysical.com.

9. Smart Vinyl "Dos and Don'ts"

9.1. Dos (you agree that you will)

This list of "Dos and Don'ts" limits what you can and cannot do on our Services.

You agree that you will:

• Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements;
• Provide accurate information to us and keep it updated;
• Use your real name on your profile
• Use the Services in a responsible manner

9.2. Don'ts (you agree that you will not):

• Create a false identity on Smart Vinyl, misrepresent your identity, create a Member profile for anyone other than yourself (a real person), or use or attempt to use another's account;
• Remove, obscure, or alter any notice, including any notice of intellectual property right appearing on or contained within Smart Vinyl Properties (including any component thereof);
• Use Smart Vinyl Properties to discover any underlying components of Smart Vinyl or its licensors’ models, algorithms, and systems, such as exfiltrating the weights of any of Smart Vinyl' or its licensors’ models by cloning via logits;
• Develop, support, or use the software, devices, scripts, robots, or any other means or processes (including crawlers, browser plugins, add-ons, or any other technology) to scrape the Services or otherwise copy profiles, metadata, media files, and other data from Smart Vinyl Properties;
• Use web scraping, web harvesting, or web data extraction methods to extract data from Smart Vinyl Properties (including Smart Vinyl Generated Content), or Smart Vinyl', its licensors’, and their affiliates’ software, models, or systems.
• Override any security feature or bypass or circumvent any access controls or use limits of the Service;
• Use, display, mirror, or frame Smart Vinyl Properties or any individual element within the Smart Vinyl Properties, name, trademark, logo, or other proprietary information, or the layout and design of any page, app, or form contained on a page, without Smart Vinyl express written consent;
• Use any meta tags or other hidden text or metadata utilizing a Smart Vinyl trademark, logo URL, or product name without Smart Vinyl express written consent;
• Attempt to probe, scan or test the vulnerability of any Smart Vinyl system or network or breach any security or authentication measures;
• Copy, use, disclose, or distribute any information obtained from Smart Vinyl Properties, whether directly or through third parties (such as search engines), without the consent of Smart Vinyl;
• Disclose information that you do not have the consent to disclose (such as confidential information of others);
• Violate the intellectual property or other rights of Smart Vinyl, including, without limitation, (i) copying or distributing Smart Vinyl Properties or other materials or (ii) copying or distributing our technology, unless it is released under open-source licenses; (iii) using the word "Smart Vinyl" or our logos in any business name, email, or URL except as provided in the Brand Guidelines;
• Post anything that contains software viruses, worms, or any other harmful code;
• Decipher, decompile, disassemble, reverse assemble, reverse compile, decompile, translate, or reverse engineer any component or software used by Smart Vinyl, discover the source code of any component of Smart Vinyl Properties, or attempt to do any of the foregoing;
• Imply or state that you are affiliated with or endorsed by Smart Vinyl without our express consent (e.g., representing yourself as an accredited Smart Vinyl Producer, Creator, etc);
• Rent, lease, loan, trade, sell/re-sell or otherwise monetize the Services or related data or access to the same, without Smart Vinyl's consent;
• Deep-link to our Services for any purpose other than to promote your profile or a Group on our Services, without Smart Vinyl's consent;
• Use bots or other automated methods to access the Services, upload, or download files, and send or redirect messages;
• Monitor the Services' availability, performance, or functionality for any competitive purpose;
• Engage in "framing," "mirroring," or otherwise simulating the appearance or function of the Services;
• Overlay or otherwise modify the Services or their appearance (such as by inserting elements into the Services or removing, covering, or obscuring an advertisement included on the Services);
• Interfere with the operation of, or place an unreasonable load on, the Services (e.g., spam, denial of service attack, viruses, gaming algorithms);
• Use non-API-based forms of automation, such as scripting the Smart Vinyl website;
• Create and/or automate multiple accounts for duplicative or substantially similar use cases;
• Buy, sell, share or transfer API keys from, to, or with a third party without our prior written consent;
• Use Smart Vinyl Properties, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
• Access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Site, Software, or Services;
• Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.

The use of these techniques may result in the permanent suspension of your account. If activity on your account violates the usage limits, Smart Vinyl may take action on your account, including suspension.

10. Third-party rights

You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Smart Vinyl, and in no event shall the Agreements create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Smart Vinyl only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

11. Copyright Complaints & Removal Policy

Smart Vinyl DMCA Policy

We respect the intellectual property of others and take the protection of intellectual property seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service. Our policy is to (a) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content posted to the Service by "repeat infringers." We consider a "repeat infringer" to be any User that has uploaded User Content to the Service and for whom we have received more than two take-down notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
1. Notification. The DMCA provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the Service infringe your intellectual property rights, then you (or your agent) may send us a "Notification of Claimed Infringement" requesting that the material be removed, or access to it blocked. The notice must include the following information:

(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;

(b) Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);

(c) Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;

(d) Your name, address, telephone number, and email address (if available);

(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice.
2. Counter Notification. If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to our designated agent through one of the methods identified above, and include substantially the following information:

(a) Your physical or electronic signature;

(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

(c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

(d) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which we may be found, and that the you will accept service of process from the person who provided notification under this DMCA Policy above or an agent of such person.

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party's obligations to provide a valid counter notification under the Copyright Act.
3. Designated Agent. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see https://www.copyright.gov/ for details. Notices and counter-notices with respect to the Service should be sent to:

Smart Vinyl, Inc.

or help@audiophysical.com
4. False Notifications of Claimed Infringement or Counter Notifications.

The Copyright Act provides that "any person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it." 17 U.S.C. § 512(f). Accordingly, we reserve the right to seek damages from any party that submits a notification of claimed infringement or counter-notification in violation of the law.

Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. The foregoing is not intended to provide you with legal advice.

12. How To Contact Us

For legal and general inquiries, you may contact us at help@audiophysical.com

Smart Vinyl, Inc.