Welcome to Cyphr, a mobile application and service provided by Cyphr Inc. These terms govern your use of our website, mobile application or services (collectively, “Services”) and software that we include as part of the Services, including any applications, Content Files (defined below), scripts, instruction sets, and any related documentation (collectively “Software”). By using the Services or Software, you agree to these terms. As discussed more in Section 3 below, you retain all rights and ownership you have in your content that you make available through the Services.
1. How this Agreement Works.
1.1 Choice of Law. Your relationship with Cyphr Inc. is governed by the laws of the State of New York, USA without regard to its conflicts of laws provisions.
1.2 Eligibility. You may only use the Services if you are over 13 years old.
1.3 License. Subject to your compliance with these terms and the law, you may access and use the Services.
1.4 Modification. We may modify, update, or discontinue the Services, Software (including any of their portions or features) at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your User Content if we discontinue the Services.
2. Content - General.
2.2 Cyphr Intellectual Property and Content. We (and our licensors) remain the sole owner of all right, title, and interest in the Services and Software, as well as to the CYPHR™ trademark. Apart from the User Content (as defined below), all content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the Services, and all intellectual property rights related thereto (the “Cyphr Content”), are either owned or licensed by Cyphr. Use of the Cyphr Content or materials on the Services for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to the Cyphr content.
2.3 Objectionable Content. As part of the Services, we host and stream user-generated content to our users. If you access our Services, you may come across content that you find offensive or upsetting. Your sole remedy is to simply stop viewing the content. If available, you may also click on the “Report” button to report the content to us.
2.4 Revenue Generation. You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, without limitation, through the sale of advertising, sponsorships, promotions, usage data, and except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from Cyphr for any User Content (defined below) or your use of any musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
2.5 License Grant. Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Services, including to download the Platform on a permitted device, and to access the User Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. Cyphr reserves all rights not expressly granted herein in the Services and the Content. You acknowledge and agree that Cyphr may terminate this license at any time for any reason or no reason.
3. User Content.
3.1 Ownership. Users of the Services may be permitted to upload, post or transmit (such as via a stream) or otherwise make available content through the Services including, without limitation, text, photographs, user videos, sound recordings and the musical works embodied therein, including videos that incorporate locally stored sound recordings from your personal music library and ambient noise (“User Content”). Users of the Services may also modify, adapt, extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user. You retain all rights and ownership of your User Content. We do not claim any ownership rights to User Content.
3.2 Licenses to Your Content in Order to Operate the Services. We require certain licenses from you to your content to operate and enable the Services. When you email, upload or otherwise submit or transmit content to us, you grant us an unconditional, irrevocable, non-exclusive, worldwide, royalty-free, sub-licensable, and fully-transferrable license to use, reproduce, publicly display, distribute, modify, adapt, make derivative works of, publicly perform, publish, transmit, and/or distribute the content, including any artwork, lyrics, metadata and track data associated with the content, and the name, image, likeness and biographical data of the artist(s), authors/composers, and producers, and to authorize other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
3.3 Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms in your User Content to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms in your User Content or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Services is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Services that may be claimed by your label.
3.4 No Obligation. We have the sole and exclusive right to determine what User Content is used with the Services, and we have no obligation to use any content that is transmitted to us. We reserve the right, at any time and without prior notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms, or otherwise harmful to the Services or our users.
4. Account Information.
4.1 You are responsible for all activity that occurs via your account. Please notify us immediately at firstname.lastname@example.org if you become aware of any unauthorized use of your account. You may not (a) share your account information or (b) use another person’s account.
4.2 We reserve the right to disable your user account at any time, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third party rights, or violate any applicable laws or regulations.
4.3 If you no longer want to use our Services, and would like your account deleted, please contact us at email@example.com, and we will provide you with further assistance. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the content or information you have added.
5. User Conduct.
5.1 Legality. It is your responsibility to make sure your use of the Services and/or Software is legal where you use them.
5.2 Misuse. You must not misuse the Services, Software, or content that we provide to you as part of the Services. For example, you must not:
(a) copy, modify, host, sublicense, or resell the Services, Software, or content;
(b) enable or allow others to use the Service, Software, or content using your account information;
(c) use the content or Software included in the Services to construct any kind of database;
(d) access or attempt to access the Services by any means other than the interface we provided or authorized;
(e) circumvent any access or use restrictions put into place to prevent certain uses of the Services;
(f) share content or engage in behavior that violates anyone’s Intellectual Property Right (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);
(g) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(i) attempt to disable, impair, or destroy the Services, software, or hardware;
(j) disrupt, interfere with, or inhibit any other user from using the Services (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way),
(k) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
(l) place advertisement of any products or services in the Services except with our prior written approval;
(m) use any data mining or similar data gathering and extraction methods in connection with the Services; or
(n) violate applicable law.
6.1 Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Services or transmit to us any User Content that you consider to be confidential or proprietary. When you submit User Content through the Services, you agree and represent that you own that User Content, or you have received all necessary permissions, clearances from, or are authorized by, the owner of any part of the content to submit it to the Services, to transmit it from the Services to other third party platforms, and/or adopt any third party content.
6.2 We reserve the right to disclose your identity to any third party who is claiming that any User Content posted or uploaded by you to our Services constitutes a violation of their intellectual property rights, or of their right to privacy.
7. Your Warranty and Indemnification Obligations.
7.1 Warranty. By transmitting your content to us, you represent and warrant that you: (a) own the content, or have all necessary licenses and permissions, to use and share the content, and grant to use the rights granted herein; (b) you have obtained all licenses, permissions, approvals, consents and clearances required for any compositions, samples or other third party intellectual property, content or materials embodied in or used in association with the content; and (c) the content does not and will not violate any law or infringe the rights of any third party (including, without limitation, any intellectual property rights).
7.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your content, your use of the Services or Software, or your violation of these terms, including specifically without limitation the warranties set forth above.
8. Disclaimers of Warranties.
8.1 Unless stated in the Additional Terms, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or that (d) any errors or defects in the Services or Software will be corrected.
8.2 We specifically disclaim any liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Software.
9. Limitation of Liability.
9.1 Unless stated in the Additional Terms, we are not liable to you or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
9.2 Our total liability in any matter arising out of or related to these terms is limited to US $100. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
9.3 The limitations and exclusions in this Section 9 apply to the maximum extent permitted by law.
10.1 Termination by You. You may stop using the Services at any time. Termination of your account does not relieve you of any obligation that may survive termination, such as those set forth in 10.3.
10.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. Unless stated in Additional Terms, we may, at any time, terminate your right to use and access the Services or Software if:
(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely payment of fees for the Software or the Services, if any;
(c) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful); or
(d) we elect to discontinue the Services or Software, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law).
10.3 Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Software may cease to operate without prior notice.
11. Dispute Resolution.
11.1 Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or Cyphr must resolve any claims relating to these terms, the Services, or the Software through final and binding arbitration in New York, USA.
We may modify these terms or any additional terms that apply to a Service or Software to, for example, reflect changes to the law or changes to our Services or Software. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified additional terms in the applicable Service or Software. By continuing to use or access the Services or Software after the revisions come into effect, you agree to be bound by the revised terms.
13.2 Notice to Cyphr. You may send the notices required hereunder to us at the following address: firstname.lastname@example.org with a copy to Sarah Hsia, Esq. at email@example.com.
13.3 Notice to You. We may notify you by email, postal mail, postings within the Services, or other legally acceptable means.
13.4 Entire Agreement. These terms constitute the entire agreement between you and us regarding your use of the Services and Software and supersede any prior agreements between you and us relating to the Services.
13.5 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be void. We may transfer our rights under these terms to a third party.
13.6 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
13.7 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
13.8 Security. We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to access our Services. You should use your own virus protection software.
14. California Consumer Rights Notice.
Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at www.dca.ca.gov/about_dca/contactus.shtml.
Users of the Services who are California residents and are under 18 years of age may request and obtain removal of User Content they posted by emailing us at firstname.lastname@example.org. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the User Content you want removed and information reasonably sufficient to permit us to locate that User Content. We do not accept California Removal Requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, and we may not be able to respond if you do not provide adequate information.