TERMS OF SERVICE

Please read these terms of service very carefully before registering for the HYFY web site and Service. These terms of service (“Agreement”) govern the content you provide and any other use of www.hyfy.io and its affiliate’s web sites. This Agreement between you (“you”) and Kickdrum, is subject to change by us as described below. By using the Site and/or Service, you (i) accept this Agreement; (ii) agree to be bound by these terms and conditions; and (iii) have entered into a binding agreement between you and Kickdrum.

  1. This web site (“Site”) is owned and operated by Kickdrum Technology Group, LLC (referred to as “Kickdrum” herein). The Site and its content (“Content”) and the Kickdrum HYFY service along with any applications provided in connection therewith (collectively the “Service”) may only be accessed in accordance with this Agreement. Any violation of the copyright in the Content or these terms and conditions may be enforced by Kickdrum or the copyright owner to the fullest extent allowed by law.
  2. You acknowledge and agree that Kickdrum may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Kickdrum’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Kickdrum when you stop using the Services. You acknowledge and agree that if Kickdrum disables access to your account, you may be prevented from accessing the Services, your account details or any files or other materials which is contained in your account. Any request for a refund must be made in writing within the first thirty (30) days of your access to the Services otherwise any fees paid for the Service are nonrefundable.   In the event that Kickdrum allows payment by credit card, you expressly agree not to charge back on the credit card account.
  3. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Kickdrum, unless you have been specifically allowed to do so in a separate agreement with Kickdrum.
  4. You, directly or indirectly, alone or with any other party, may not:
    1. modify, change, create derivative works of, disassemble, decompile or otherwise reverse engineer the Service or any software provided in connection with the Service (“Software”), or remove proprietary legends in the Service or Software;
    2. distribute, transfer, resell, rent, lease, or loan the Service or Software to any other party, except as described herein;
    3. make the Service or Software available to others in a service bureau arrangement or for any similar commercial time-sharing or third party training use;
    4. harass, threaten or otherwise cause distress, unwanted attention or discomfort to a person or entity;
    5. post or otherwise transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party;
    6. post or otherwise transmit any content that (i) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (ii) you do not have the right to transmit, such as information that is subject to a confidentiality agreement between you and another party; (iii) contains sexually explicit images or other content that is offensive; (iv) is harmful to minors in any way; or (v) promotes or provides instructional information about illegal activities or promotes physical harm or injury against any group or individual;
    7. send any unsolicited commercial email, spam, or bulk commercial email;
    8. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
    9. violate (intentionally or unintentionally) any applicable local, state, national or international law including, but not limited to, any regulations having the force of law; or
    10. interfere with or disrupt the Service or Software, or servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Service or Software.

    You agree that you are solely responsible for (and that Kickdrum has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which Kickdrum may suffer) of any such breach. To the extent Kickdrum incurs any financial penalties or other costs and expenses (including investigation expenses) from Kickdrum’s server hosting facility, internet service provider or other vendors because of your use of the Software, you shall be obligated to immediately reimburse Kickdrum for any such penalties, costs or expenses.

  5. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such materials originated, which may be you.
  6. Kickdrum reserves all rights not specifically granted herein. You shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership on the Content or other materials accessed through the Service. The delivery of, and license to, the Content and/or access to third party materials does not transfer to you any commercial or promotional use rights in the Content or any portion thereof. Any use of Content, or descriptions; any derivative use of this Site or its materials; and any use of data mining, robots, or similar data gathering and extraction tools is strictly prohibited. In no event shall the user frame any portion of the Site or any materials contained therein.
  7. While Kickdrum uses reasonable efforts to include accurate and up-to-date information on the Site, Kickdrum makes no warranties or representations as to its accuracy. Kickdrum assumes no liability or responsibility for any errors or representations in the Content or this Site.
  8. The Site may contain links to other sites on the Internet which are owned and operated by Third Party Vendors and other third parties (the “External Sites”). You acknowledge that Kickdrum is not responsible for the availability of, or the materials located on or through, any External Sites. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or the materials located on such External Sites.
  9. You acknowledge that by accessing the Site, you may come into contact with content that you find harmful, offensive, threatening, indecent or objectionable and you acknowledge that Kickdrum shall have no liability to you for the content including, but not limited to explicit language and other potentially offensive material. The user agrees not to impersonate any person or communicate under a false name or a name the user is not entitled or authorized to use. Kickdrum has the right (but not the obligation) to remove, prohibit, edit or discontinue any content on the Site, including content that has been posted by users.
  10. If you post content or submit material, unless such content or material submittal is subject to separate terms and conditions, you retain all of your ownership rights in your content however you hereby grant Kickdrum and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, license to use, reproduce, perform, distribute, and display such content. Furthermore, you grant Kickdrum, its affiliates, and sublicensees the right to use your name and/or user name in connection with the content. You represent and warrant that all content and materials you provide shall be your original work product and will not be based on, or derived from, the proprietary information or items of a third party. Furthermore, you represent and warrant that your use of the Service in connection with any content or third party content complies with all laws including, but not limited to, United States copyright law. You also hereby grant each user of the Service a non-exclusive license to access your content through the Service, and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service and under this Agreement. The licenses granted in your submitted content terminate within a commercially reasonable time after you remove or delete your content from the Service; however, you understand, acknowledge and agree that Kickdrum may retain, but not display, server copies of your content that has been removed or deleted. The licenses granted by you with respect to comments you submit are perpetual and irrevocable. You will defend, indemnify and hold Kickdrum and its affiliates harmless from and against any claims resulting from any content or materials you provide hereunder or your use of the Service.
  11. At your discretion, you may provide feedback to Kickdrum concerning the functionality and performance of the Service from time to time, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If you, through your evaluation or otherwise, suggests any Feedback, you hereby assign the ownership in all Feedback to Kickdrum. In the event ownership in the Feedback cannot be granted to Kickdrum, you grant Kickdrum at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction. You agree that Kickdrum may disclose that Feedback to any third party in any manner and you agree that Kickdrum has the ability to sublicense all Feedback in any form to any third party without restriction.
  12. The Site may contain areas in which additional terms and conditions apply. For purposes of the use of such areas, in the event of a conflict between the terms and conditions of such other areas and these Terms and Conditions, the terms and conditions of the other area shall prevail. Kickdrum may at any time revise these Terms and Conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms and Conditions to which you are bound.
  13. “Cookies” are small pieces of information and programmatically generated data that are stored on a computer's hard drive. The Service may use Cookies to provide information to Kickdrum’s software or server on which the Service runs.
  14. You shall not transmit to Kickdrum or upload to this Site any Harmful Code or use or misappropriate the data on this Site for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is intentionally designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.
  15. You may not use your username and password for any unauthorized purpose.
  16. As between the parties, Kickdrum owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by Kickdrum from performance and usage data generated through your use of the Site, Service or Software (collectively, “Aggregate Data”). Aggregate Data is de-identified so that you cannot be identified as the source within the Aggregate Data.
  17. Kickdrum may terminate your access to our Site or the Service for any reason at any time. The provisions that by their nature are designed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement or your access to our Site or Service.
  18. By using this Site, you signify your assent to these terms of use and agree to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations, copyright laws and other laws regarding intellectual property. If you do not agree to these terms of use, please do not use the Service. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
  19. The materials on this Site are provided with “Restricted Rights.” Use, duplication, or disclosure by the Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the Government constitutes acknowledgment of Kickdrum’s proprietary rights in them.
  20. THE MATERIALS, CONTENT ON THIS SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. KICKDRUM SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, MATERIALS POSTED ON THE SITE OR SERVICES. KICKDRUM MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SERVICE. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, KICKDRUM DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHER VIOLATION OF RIGHTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KICKDRUM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.
  21. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL KICKDRUM OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE OR THE SERVICE, EVEN IF KICKDRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. KICKDRUM’S AND ITS LICENSORS’ ENTIRE AND AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED $100, EVEN IF KICKDRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IF YOUR USE OF MATERIALS FROM THIS SITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
  22. This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. This Agreement may not be modified, supplemented, amended or interpreted by any trade usage or prior course of dealing unless specifically agreed upon in writing. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.
  23. Kickdrum shall not be liable to you for any delay or failure of Kickdrum to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Kickdrum. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder.
  24. The state or federal courts sitting in Travis County, Texas shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement and sale, and you hereby consent to the jurisdiction of such courts. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining or participating in any class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Site or Service.