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Last Updated Date: Sept 1, 2023
Testcode, Inc. ("Deepcut", "deepcut.fm", "deepcut.com", "our" or "we") provides a service through our website, accessible at http://deepcut.fm (the "Site") and as an application for mobile devices (the "Application"), via which users can enjoy music and simultaneously interact with one another on the Site and Application (the "Service"). Please read carefully the following terms and conditions ("Terms") and our Privacy Policy, which may be found at http://deepcut.com/privacy/. These Terms govern your access to and use of the Site, Application and Service and all Collective Content (defined below), and constitute a binding legal agreement between you and Deepcut.
Key Terms related to Content
"Collective Content" means Member Content and deepcut.com Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Member" means a person that completes deepcut.com's account registration process, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Service.
"Deepcut Content" “Deepcut Content” means all Content that Deepcut makes available to you through the Site, Application or Service, including Deepcut Gold Content (if you have paid for a Deepcut Gold subscription) and any such Content licensed from a third party, but excluding Member Content.
"Deepcut Gold Content" means the premium avatars and stickers, animated GIFs displayed directly in chat windows, and Deepcut Gold badge for your profile and avatar that Deepcut makes available to Members who subscribe to the Deepcut Gold service.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Service or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Service, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Service, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICE OR BY DOWNLOADING OR POSTING ANY COLLECTIVE CONTENT FROM OR ON THE SITE OR APPLICATION OR THROUGH THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR VIA THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Modification
Deepcut reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Application or Service or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site, Application or the Service after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Service.
Eligibility
The Site, Application and Service are intended solely for persons who are 13 or older. Any access to or use of the Site, Application or Service by anyone under 13 is expressly prohibited. By accessing or using the Site, Application or Service you represent and warrant that you are 13 or older.
Using the Site and Application
As a Member, you can use the Site, Application and Service to (i) play a multiplayer game with other users where different people can take turns embedding a Youtube video into the game's web browser.
Account Registration
In order to access certain features of the Site and Application, you must register to create an account ("Deepcut Account") and become a Member. You will be prompted to provide certain information to us and to create your Member avatar. You may register to join the Services by logging into your account with certain third party social networking sites ("SNS") (including, for example, Facebook and Twitter) via our Site and Application. If you decide to create a Deepcut Account, we will extract the Personal Information you have provided to the SNS (such as your "real" name, email address and other information you make publicly available via the SNS) from the account you have with such SNS and use that information to create your Deepcut Account; the information we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you.
We will create your Account for your use of the Site and Application based upon the personal information that we obtain via an SNS as described above. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Deepcut reserves the right to suspend or terminate your Deepcut Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Deepcut of any unauthorized use of your Deepcut Account.
In-Site and Application Virtual Points and Goods
A virtual points system is available via the Service which points are referred to as "DJ Points". DJ Points may be obtained through your activities within the Site, Application and Services. DJ Points are made available to you at the sole discretion of Deepcut and may be discontinued at any time. The Site and Application may also include virtual, digital items ("Virtual Goods") that may be obtained or redeemed from Deepcut in exchange for DJ Points. Regardless of the terminology used, DJ Points and Virtual Goods may never be redeemed for "real world" money, goods or other items of monetary value from Deepcut or any other party.
Virtual Goods and DJ Points are digital items only. Deepcut grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license to use such Virtual Goods and DJ Points, solely within the Site, Application and Service for in-Site, Application and Service activities, for your personal and non-commercial use and for no other purpose. Except for the limited rights described herein, you have no property interest or right or title in or to any such Virtual Goods or DJ Points, which remain the exclusive property of Deepcut. As stated above, the existence of a particular offer of Virtual Goods or DJ Points is not a commitment by Deepcut to maintain or continue to make the Virtual Goods or DJ Points available in the future. The scope, variety and type of Virtual Goods and DJ Points that you may obtain can change at any time. Deepcut has the absolute right to manage, regulate, control, modify or eliminate such DJ Points or Virtual Goods as it sees fit in its sole discretion, and Deepcut will have no liability to you or anyone for the exercise of such rights.
Except where explicitly authorized within the Site, Application or Service, (i) transfers of DJ Points or Virtual Goods are strictly prohibited; (ii) outside of the Site, Application and Service, you may not buy or sell any DJ Points or Virtual Goods for "real world" money or otherwise exchange items for value; and (iii) Deepcut does not recognize any such purported transfers of DJ Points or Virtual Goods, nor the purported sale, gift or trade in the "real world" of anything that appears on the Site, Application and Service. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the DJ Points or Virtual Goods and may result in termination of your Deepcut Account, a lifetime ban from the Site, Application and Service and/or possible legal action. All Virtual Goods and DJ Points are forfeited if your Deepcut Account is terminated or suspended for any reason, in Deepcut's sole and absolute discretion, or if Deepcut discontinues providing the Site, Application or Service.
Deepcut Gold
Subject to payment of the Deepcut Gold Fees, you may opt to subscribe for a membership to our premium Deepcut Gold service and receive access to Deepcut Gold Content during your subscription period. Deepcut reserves the right, in its sole discretion, at any time and without prior notice, to add to, modify, remove or disable access the Deepcut Gold Content or any portion thereof. If the modified Deepcut Gold Content or access thereto is not acceptable to you, your only recourse is to terminate your subscription to the Deepcut Gold service.
Your Deepcut Gold subscription will have an initial term of one month from registration and will automatically renew for additional one (1) month periods, unless terminated in accordance with these Terms. You may cancel your Deepcut Gold subscription at any time through the Account Management page of your Deepcut Account, and Deepcut may cancel your Deepcut Gold subscription at any time by providing you with notice. Upon cancellation, your Deepcut Gold subscription will continue through the end of the then-current monthly period for which you have paid, after which your access to the Deepcut Gold service will cease. If you breach any of these Terms, Deepcut may immediately terminate your Deepcut Gold subscription, at its sole discretion, without prior notice to you.
You agree to pay the monthly subscription fees that you agree to pay during your registration for the Deepcut Gold service (the "Monthly Fee"). You will pay the Monthly Fee on the first day of each month during your subscription to the Deepcut Gold service. All fees are non-refundable and non-transferable, and all fees and applicable taxes, if any, are payable in U.S. dollars. If you pay by credit card, you represent and warrant that you are authorized to use such credit card, and you agree to pay all charges incurred using your Deepcut Account. Deepcut reserves the right to adjust your Monthly Fee, by providing you with notice, such fee adjustments to be effective beginning on the next monthly period of your subscription. If the modified fees are not acceptable to you, your only recourse is to terminate your Deepcut Gold subscription.
If you have any questions about your Deepcut Gold membership, please contact Deepcut at help@deepcut.com.
Payment Terms
Other than the payment obligations for Deepcut Gold service, Deepcut currently makes the Site, Application and Service available without charge. However, please note that Deepcut reserves the right, in its sole discretion, to establish additional fees related to use of the Site, Application and Service. In the event that Deepcut implements any such fees, Deepcut will provide notice to you in advance of the implementation.
Privacy
See deepcut.com's Privacy Policy at http://deepcut.com/privacy/ for information and notices concerning Deepcut's collection and use of your personal information.
Ownership
The Site, Application, Service and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Deepcut and its licensors exclusively own all right, title and interest in and to the Site, Application, Service and Collective Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Service or Collective Content.
Deepcut Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Deepcut grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Service and to access and view any Member Content that is not in the form of music solely for your personal and non-commercial purposes. Deepcut Content (including music content licensed to Deepcut by third parties who are not Members) and Member Content in the form of music only (as made available via the Site and Service) may be used solely for your personal and non-commercial purposes. You understand and agree that each of Deepcut's third party Content licensors is an intended third party beneficiary of these Terms with respect to your license to any of such licensor's Content included in Deepcut Basic Content and will have the right to enforce these Terms against you with respect to your license to any such Deepcut Basic Content as an intended third party beneficiary thereof. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Service, or Collective Content, except as expressly permitted in these Terms. No licenses, permissions or rights are granted to you by implication or otherwise with respect to any intellectual property rights owned or controlled by Deepcut or its licensors, except for the licenses and any permissions expressly granted in these Terms.
Member Content
We may, in our sole discretion, permit Members to post, upload, publish, submit or otherwise use Member Content via the Site and Service. By making available any Member Content through the Site, Application and Service (excluding music that you upload via the Service), you hereby grant to Deepcut a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, reproduce, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application and the Service. Additionally, by uploading, posting, transmitting or submitting any Member Content in the form of music to or via the Service, you hereby grant to Deepcut a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, reproduce, distribute, publicly perform, transmit, stream, broadcast, access, and view such Member Content only on, through or by means of the Site, Application and Service. Deepcut does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content outside of the Site or Service.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Service or you have all rights, licenses, consents and releases that are necessary to grant to Deepcut the rights in such Member Content, as set forth in these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Deepcut' use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Service will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or will violate any applicable law or regulation.
Application License
Subject to your compliance with these Terms, Deepcut grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Deepcut reserves all rights in and to the Application not expressly granted to you under these Terms.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
You acknowledge and agree that (i) these Terms are concluded between you and Deepcut only, and not Apple, and (ii) Deepcut, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Deepcut and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Deepcut.
You and Deepcut acknowledge that, as between Deepcut and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Deepcut acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Deepcut and Apple, Deepcut, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Deepcut acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Service ("Feedback"). You may submit Feedback by emailing us at help@deepcut.com or through the "Feedback" section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of deepcut.com and you hereby irrevocably assign to deepcut.com and agree to irrevocably assign to deepcut.com all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At deepcut.com's request and expense, you will execute documents and take such further acts as deepcut.com may reasonably request to assist deepcut.com to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
General Prohibitions
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Site or Application, or any individual element within the Site and Application, Deepcut's name, any Deepcut trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Deepcut's express written consent;
Access, tamper with, or use non-public areas of the Site or Application, Deepcut's computer systems, or the technical delivery systems of Deepcut's providers;
Attempt to probe, scan, or test the vulnerability of any Deepcut system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Deepcut or any of Deepcut's providers or any other third party (including another user) to protect the Site, Application, Service or Collective Content;
Attempt to access or search the Site, Application or Collective Content or download Collective Content from the Site or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Deepcut or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Deepcut trademark, logo URL or product name without Deepcut's express written consent;
Use the Site, Application or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Application or Collective Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Application or Collective Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Application;
Collect or store any personally identifiable information from the Site or Application from other users of the Site or Application without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Deepcut will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Deepcut may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Deepcut has no obligation to monitor your access to or use of the Site, Application, Service or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Application and Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Deepcut reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Collective Content, that Deepcut, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Service.
Copyright and IP Policy
Deepcut respects copyright law and expects its users to do the same. Deepcut has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Deepcut's Copyright Policy at http://deepcut.com/copyright/, for further information.
Links
The Site and Application may contain links to third-party websites or resources. You acknowledge and agree that Deepcut is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Deepcut of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Deepcut will have the right to suspend or disable your Deepcut Account or terminate these Terms, at its sole discretion and without prior notice to you. Deepcut reserves the right to revoke your access to and use of the Site, Application, Service and Content at any time, with or without cause. You may cancel your Deepcut Account at any time by sending an email to help@deepcut.com
YouTube Terms of Service
By using deepcut.com, you also agree to the YouTube Terms of Service
Disclaimers
THE SITE, APPLICATION, SERVICE AND COLLECTIVE CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, DEEPCUT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DEEPCUT MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DEEPCUT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE, APPLICATION OR SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEEPCUT OR THROUGH THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE. YOU UNDERSTAND THAT DEEPCUT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE, APPLICATION OR SERVICE, NOR DOES DEEPCUT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICE. DEEPCUT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Indemnity
You agree to defend, indemnify, and hold Deepcut, its subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Application, Service or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICE AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER DEEPCUT.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM YOUR USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICE OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DEEPCUT.COM HAS 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.
IN NO EVENT WILL DEEPCUT'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEEPCUT.COM AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Deepcut used herein are trademarks or registered trademarks of Deepcut. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Deepcut and you regarding the Site, Application, Service and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Deepcut and you regarding the Site, Application, Service and Collective Content.
Assignment
You may not assign or transfer these Terms, by operation of law or otherwise, without Deepcut's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Deepcut may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Deepcut (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Dispute Resolution
You and Deepcut agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Service or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Deepcut are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Deepcut otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and deepcut.com otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and deepcut.com submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. deepcut.com will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Deepcut will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if deepcut.com changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@deepcut.com) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Deepcut's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Deepcut in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
General
The failure of Deepcut to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Deepcut. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting Deepcut
If you have any questions about these Terms or any App Store Sourced Application, please contact Deepcut at help@deepcut.com or at Testcode, Inc, P.O. Box 454, Brooklyn, NY 11211.
Effective Date: Sept 1, 2023
Testcode, Inc. ("Deepcut", "deepcut.fm", "deepcut.com", "our" or "we") provides a service through our website, accessible at http://deepcut.fm (the "Site") and as an application for mobile devices (the "Application"), via which users can enjoy music and simultaneously interact with one another on the Site and Application (the "Service"). Please read carefully the following terms and conditions ("Terms") and our Privacy Policy, which may be found at http://deepcut.com/privacy/. These Terms govern your access to and use of the Site, Application and Service and all Collective Content (defined below), and constitute a binding legal agreement between you and Deepcut.
Key Terms related to Content
"Collective Content" means Member Content and deepcut.com Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Member" means a person that completes deepcut.com's account registration process, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Service.
"Deepcut Content" “Deepcut Content” means all Content that Deepcut makes available to you through the Site, Application or Service, including Deepcut Gold Content (if you have paid for a Deepcut Gold subscription) and any such Content licensed from a third party, but excluding Member Content.
"Deepcut Gold Content" means the premium avatars and stickers, animated GIFs displayed directly in chat windows, and Deepcut Gold badge for your profile and avatar that Deepcut makes available to Members who subscribe to the Deepcut Gold service.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Service or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Service, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Service, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICE OR BY DOWNLOADING OR POSTING ANY COLLECTIVE CONTENT FROM OR ON THE SITE OR APPLICATION OR THROUGH THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR VIA THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Modification
Deepcut reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Application or Service or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site, Application or the Service after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Service.
Eligibility
The Site, Application and Service are intended solely for persons who are 13 or older. Any access to or use of the Site, Application or Service by anyone under 13 is expressly prohibited. By accessing or using the Site, Application or Service you represent and warrant that you are 13 or older.
Using the Site and Application
As a Member, you can use the Site, Application and Service to (i) play a multiplayer game with other users where different people can take turns embedding a Youtube video into the game's web browser.
Account Registration
In order to access certain features of the Site and Application, you must register to create an account ("Deepcut Account") and become a Member. You will be prompted to provide certain information to us and to create your Member avatar. You may register to join the Services by logging into your account with certain third party social networking sites ("SNS") (including, for example, Facebook and Twitter) via our Site and Application. If you decide to create a Deepcut Account, we will extract the Personal Information you have provided to the SNS (such as your "real" name, email address and other information you make publicly available via the SNS) from the account you have with such SNS and use that information to create your Deepcut Account; the information we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you.
We will create your Account for your use of the Site and Application based upon the personal information that we obtain via an SNS as described above. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Deepcut reserves the right to suspend or terminate your Deepcut Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Deepcut of any unauthorized use of your Deepcut Account.
In-Site and Application Virtual Points and Goods
A virtual points system is available via the Service which points are referred to as "DJ Points". DJ Points may be obtained through your activities within the Site, Application and Services. DJ Points are made available to you at the sole discretion of Deepcut and may be discontinued at any time. The Site and Application may also include virtual, digital items ("Virtual Goods") that may be obtained or redeemed from Deepcut in exchange for DJ Points. Regardless of the terminology used, DJ Points and Virtual Goods may never be redeemed for "real world" money, goods or other items of monetary value from Deepcut or any other party.
Virtual Goods and DJ Points are digital items only. Deepcut grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license to use such Virtual Goods and DJ Points, solely within the Site, Application and Service for in-Site, Application and Service activities, for your personal and non-commercial use and for no other purpose. Except for the limited rights described herein, you have no property interest or right or title in or to any such Virtual Goods or DJ Points, which remain the exclusive property of Deepcut. As stated above, the existence of a particular offer of Virtual Goods or DJ Points is not a commitment by Deepcut to maintain or continue to make the Virtual Goods or DJ Points available in the future. The scope, variety and type of Virtual Goods and DJ Points that you may obtain can change at any time. Deepcut has the absolute right to manage, regulate, control, modify or eliminate such DJ Points or Virtual Goods as it sees fit in its sole discretion, and Deepcut will have no liability to you or anyone for the exercise of such rights.
Except where explicitly authorized within the Site, Application or Service, (i) transfers of DJ Points or Virtual Goods are strictly prohibited; (ii) outside of the Site, Application and Service, you may not buy or sell any DJ Points or Virtual Goods for "real world" money or otherwise exchange items for value; and (iii) Deepcut does not recognize any such purported transfers of DJ Points or Virtual Goods, nor the purported sale, gift or trade in the "real world" of anything that appears on the Site, Application and Service. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the DJ Points or Virtual Goods and may result in termination of your Deepcut Account, a lifetime ban from the Site, Application and Service and/or possible legal action. All Virtual Goods and DJ Points are forfeited if your Deepcut Account is terminated or suspended for any reason, in Deepcut's sole and absolute discretion, or if Deepcut discontinues providing the Site, Application or Service.
Deepcut Gold
Subject to payment of the Deepcut Gold Fees, you may opt to subscribe for a membership to our premium Deepcut Gold service and receive access to Deepcut Gold Content during your subscription period. Deepcut reserves the right, in its sole discretion, at any time and without prior notice, to add to, modify, remove or disable access the Deepcut Gold Content or any portion thereof. If the modified Deepcut Gold Content or access thereto is not acceptable to you, your only recourse is to terminate your subscription to the Deepcut Gold service.
Your Deepcut Gold subscription will have an initial term of one month from registration and will automatically renew for additional one (1) month periods, unless terminated in accordance with these Terms. You may cancel your Deepcut Gold subscription at any time through the Account Management page of your Deepcut Account, and Deepcut may cancel your Deepcut Gold subscription at any time by providing you with notice. Upon cancellation, your Deepcut Gold subscription will continue through the end of the then-current monthly period for which you have paid, after which your access to the Deepcut Gold service will cease. If you breach any of these Terms, Deepcut may immediately terminate your Deepcut Gold subscription, at its sole discretion, without prior notice to you.
You agree to pay the monthly subscription fees that you agree to pay during your registration for the Deepcut Gold service (the "Monthly Fee"). You will pay the Monthly Fee on the first day of each month during your subscription to the Deepcut Gold service. All fees are non-refundable and non-transferable, and all fees and applicable taxes, if any, are payable in U.S. dollars. If you pay by credit card, you represent and warrant that you are authorized to use such credit card, and you agree to pay all charges incurred using your Deepcut Account. Deepcut reserves the right to adjust your Monthly Fee, by providing you with notice, such fee adjustments to be effective beginning on the next monthly period of your subscription. If the modified fees are not acceptable to you, your only recourse is to terminate your Deepcut Gold subscription.
If you have any questions about your Deepcut Gold membership, please contact Deepcut at help@deepcut.com.
Payment Terms
Other than the payment obligations for Deepcut Gold service, Deepcut currently makes the Site, Application and Service available without charge. However, please note that Deepcut reserves the right, in its sole discretion, to establish additional fees related to use of the Site, Application and Service. In the event that Deepcut implements any such fees, Deepcut will provide notice to you in advance of the implementation.
Privacy
See deepcut.com's Privacy Policy at http://deepcut.com/privacy/ for information and notices concerning Deepcut's collection and use of your personal information.
Ownership
The Site, Application, Service and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Deepcut and its licensors exclusively own all right, title and interest in and to the Site, Application, Service and Collective Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Service or Collective Content.
Deepcut Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Deepcut grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Service and to access and view any Member Content that is not in the form of music solely for your personal and non-commercial purposes. Deepcut Content (including music content licensed to Deepcut by third parties who are not Members) and Member Content in the form of music only (as made available via the Site and Service) may be used solely for your personal and non-commercial purposes. You understand and agree that each of Deepcut's third party Content licensors is an intended third party beneficiary of these Terms with respect to your license to any of such licensor's Content included in Deepcut Basic Content and will have the right to enforce these Terms against you with respect to your license to any such Deepcut Basic Content as an intended third party beneficiary thereof. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Service, or Collective Content, except as expressly permitted in these Terms. No licenses, permissions or rights are granted to you by implication or otherwise with respect to any intellectual property rights owned or controlled by Deepcut or its licensors, except for the licenses and any permissions expressly granted in these Terms.
Member Content
We may, in our sole discretion, permit Members to post, upload, publish, submit or otherwise use Member Content via the Site and Service. By making available any Member Content through the Site, Application and Service (excluding music that you upload via the Service), you hereby grant to Deepcut a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, reproduce, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application and the Service. Additionally, by uploading, posting, transmitting or submitting any Member Content in the form of music to or via the Service, you hereby grant to Deepcut a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, reproduce, distribute, publicly perform, transmit, stream, broadcast, access, and view such Member Content only on, through or by means of the Site, Application and Service. Deepcut does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content outside of the Site or Service.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Service or you have all rights, licenses, consents and releases that are necessary to grant to Deepcut the rights in such Member Content, as set forth in these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Deepcut' use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Service will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or will violate any applicable law or regulation.
Application License
Subject to your compliance with these Terms, Deepcut grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Deepcut reserves all rights in and to the Application not expressly granted to you under these Terms.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
You acknowledge and agree that (i) these Terms are concluded between you and Deepcut only, and not Apple, and (ii) Deepcut, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Deepcut and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Deepcut.
You and Deepcut acknowledge that, as between Deepcut and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Deepcut acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Deepcut and Apple, Deepcut, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Deepcut acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Service ("Feedback"). You may submit Feedback by emailing us at help@deepcut.com or through the "Feedback" section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of deepcut.com and you hereby irrevocably assign to deepcut.com and agree to irrevocably assign to deepcut.com all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At deepcut.com's request and expense, you will execute documents and take such further acts as deepcut.com may reasonably request to assist deepcut.com to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
General Prohibitions
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Site or Application, or any individual element within the Site and Application, Deepcut's name, any Deepcut trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Deepcut's express written consent;
Access, tamper with, or use non-public areas of the Site or Application, Deepcut's computer systems, or the technical delivery systems of Deepcut's providers;
Attempt to probe, scan, or test the vulnerability of any Deepcut system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Deepcut or any of Deepcut's providers or any other third party (including another user) to protect the Site, Application, Service or Collective Content;
Attempt to access or search the Site, Application or Collective Content or download Collective Content from the Site or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Deepcut or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Deepcut trademark, logo URL or product name without Deepcut's express written consent;
Use the Site, Application or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Application or Collective Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Application or Collective Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Application;
Collect or store any personally identifiable information from the Site or Application from other users of the Site or Application without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Deepcut will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Deepcut may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Deepcut has no obligation to monitor your access to or use of the Site, Application, Service or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Application and Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Deepcut reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Collective Content, that Deepcut, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Service.
Copyright and IP Policy
Deepcut respects copyright law and expects its users to do the same. Deepcut has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Deepcut's Copyright Policy at http://deepcut.com/copyright/, for further information.
Links
The Site and Application may contain links to third-party websites or resources. You acknowledge and agree that Deepcut is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Deepcut of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Deepcut will have the right to suspend or disable your Deepcut Account or terminate these Terms, at its sole discretion and without prior notice to you. Deepcut reserves the right to revoke your access to and use of the Site, Application, Service and Content at any time, with or without cause. You may cancel your Deepcut Account at any time by sending an email to help@deepcut.com
YouTube Terms of Service
By using deepcut.com, you also agree to the YouTube Terms of Service
Disclaimers
THE SITE, APPLICATION, SERVICE AND COLLECTIVE CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, DEEPCUT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DEEPCUT MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DEEPCUT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE, APPLICATION OR SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEEPCUT OR THROUGH THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE. YOU UNDERSTAND THAT DEEPCUT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE, APPLICATION OR SERVICE, NOR DOES DEEPCUT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICE. DEEPCUT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Indemnity
You agree to defend, indemnify, and hold Deepcut, its subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Application, Service or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICE AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER DEEPCUT.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM YOUR USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICE OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DEEPCUT.COM HAS 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.
IN NO EVENT WILL DEEPCUT'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICE, OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEEPCUT.COM AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Deepcut used herein are trademarks or registered trademarks of Deepcut. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Deepcut and you regarding the Site, Application, Service and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Deepcut and you regarding the Site, Application, Service and Collective Content.
Assignment
You may not assign or transfer these Terms, by operation of law or otherwise, without Deepcut's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Deepcut may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Deepcut (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Dispute Resolution
You and Deepcut agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Service or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Deepcut are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Deepcut otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and deepcut.com otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and deepcut.com submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. deepcut.com will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Deepcut will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if deepcut.com changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@deepcut.com) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Deepcut's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Deepcut in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
General
The failure of Deepcut to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Deepcut. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting Deepcut
If you have any questions about these Terms or any App Store Sourced Application, please contact Deepcut at help@deepcut.com or at Testcode, Inc, P.O. Box 454, Brooklyn, NY 11211.
Effective Date: Sept 1, 2023