These Terms also include any other disclosures or disclaimers related to the Website which are: (i) presented to you directly on the Website or otherwise in connection with the Services; or (ii) contained in communications from The Franklin Drum Company to you, including without limitation email communications.
- Use of the Services
- Security and Confidentiality
- Third-Party Websites
- Limitation of Liability
- Compliance with Applicable Laws
- Copyright Infringement Claims
- Class Action Waiver
USE OF THE SERVICES
We grant you a personal, limited, revocable, non-transferable, non-exclusive license to access and use the Services in accordance with these Terms and any separate commercial arrangement we make with you.
You acknowledge and agree that we maintain all right, title, and interest in and to the Services, including without limitation the Website (and all text, images, trademarks, logos, and other content thereon), and except for the limited license right above nothing in these Terms shall be construed as granting you any proprietary or license rights in or to the Services or anything contained therein.
We reserve the right, in our sole discretion, to change, suspend, add to, or discontinue any aspect of the Services, and we will not be liable to you or to any Third-Party for doing so.
You may use the Services only in compliance with these Terms. You are responsible for your own communications, including the transmission, uploading, or posting of information on or through the Website, and are responsible for the consequences of such communications.
Without limiting the foregoing, you agree you will not:
- collect any personal information of any other user of the Services;
- use spiders, robots, or other automated techniques to catalog, download, store, or otherwise reproduce or distribute data or content available through the Services;
- take any action to interfere with the Services;
- send or transmit any viruses, corrupted data, or any other harmful, disruptive, or destructive code, file, or information, including without limitation any spyware;
- send unsolicited emails, including without limitation promotions or advertising of products or services;
- post or transmit any threatening, libelous, defamatory, obscene, lewd, scandalous, or inflammatory material or content or any material or content that could otherwise violate applicable laws;
- impersonate any person or entity, misrepresent your affiliation with a person or entity, or in any way forge or mask your true identity;
- reverse engineer any aspect of the Services or take any act that might reveal or disclose any source code, or bypass or circumvent measurers or controls utilized to prohibit, restrict or limit access to any webpage, content or code;
- engage in any criminal or illegal acts or in any activities that may violate a Third-Party’s privacy or publicity rights; or
- encourage and/or advise any individual to commit any act prohibited by these Terms.
SECURITY AND CONFIDENTIALITY
In connection with your use of the Services, you may have the opportunity to review or access confidential and proprietary information, materials, products, and content (“Confidential Information”) belonging to The Franklin Drum Company or our customers, partners or licensors. Confidential Information is and shall remain the sole and exclusive property of its owner. In no event shall you obtain any right, title, or interest in or to any Confidential Information. You agree to protect the confidentiality and secrecy of the Confidential Information. You agree not to modify, copy, reproduce, republish, display, transmit, distribute, reverse engineer, create derivative works of, decompile, or otherwise use, alter, or transfer Confidential Information without the prior express written consent of The Franklin Drum Company. You acknowledge and agree that Confidential Information may be subject to and protected by intellectual property laws, regulations, and codes.
All communications from you related to the Services, including without limitation content submitted or transmitted by you to The Franklin Drum Company, by electronic mail or otherwise, shall be treated as non-confidential and non-proprietary information, unless specifically indicated by you either prior to, or contemporaneously with, the submission or transmission of such communications and content.
Using the Services may require the use of a username and password or other form of authentication where appropriate. The confidentiality of the access credentials and account itself are your responsibility. Any activities that occur under users’ accounts are their responsibility. You agree to notify The Franklin Drum Company immediately of any unauthorized use of accounts or any other breach of confidentiality or security. The use of another person’s access credentials is expressly prohibited.
You acknowledge that the use of the implemented authentication methods are an adequate form of security. You are solely responsible for (1) authorizing, monitoring, controlling access to, and maintaining strict confidentiality of your access credentials; (2) not allowing another person to use your access credentials; (3) any changes or damage that may be incurred as a result of your neglect to maintain the strict confidentiality of your access credentials; and (4) promptly informing The Franklin Drum Company in writing of any need to deactivate an account due to security concerns or otherwise.
The Franklin Drum Company is not liable for any harm related to the misuse or theft of access credentials, disclosure of access credentials, or your authorization to allow another person or entity to access and use the Services using your access credentials. You will be held liable for any harm ensuing from the use of your account in connection with the Services.
In connection with your use of the Services, you may be able to voluntarily connect to websites maintained or operated by third-parties (“Third-Party Websites”). The Franklin Drum Company does not make any representations or warranties regarding or endorse any Third-Party Website or any products, services, or opportunities advertised, offered, or sold in connection with any Third-Party Website. Please carefully review all policies and terms applicable to the Third-Party Websites.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. NEITHER The Franklin Drum Company NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES MAKES ANY REPRESENTATIONS: (1) ABOUT THE SUITABILITY OF THE SERVICES FOR ANY PURPOSE; (2) THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (3) THAT THE SERVICES, OR ANY THIRD-PARTY WEBSITES, WILL MEET YOUR REQUIREMENTS; OR (4) THAT THE SERVICES WILL BE TIMELY OR SECURE.
ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DOWNLOADED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM THE FRANKLIN DRUM COMPANY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL THE FRANKLIN DRUM COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, OR OTHERWISE FOR ANY DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH: (1) YOUR USE OR THE INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (3) ANY SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH THE WEBSITE; OR (4) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT, OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER THE FRANKLIN DRUM COMPANY WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.
IN THE EVENT THE FRANKLIN DRUM COMPANY BEARS LIABILITY FOR DAMAGES, LOSSES, AND CAUSES OF ACTION, THE LIABILITY WILL BE LIMITED TO THE MAXIMUM AMOUNT PAID BY YOU, IF ANY, TO THE FRANKLIN DRUM COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE ALLEGED LIABILITY OR ONE HUNDRED AND FIFTY DOLLARS ($150), WHICHEVER IS GREATER.
Compliance with Applicable Laws
You acknowledge and agree that you will comply with all applicable international, national, federal, state, and local laws, codes, regulations, rules, and requirements which apply to your use of, participation in, and access to the Services.
You agree to indemnify, defend, and hold harmless The Franklin Drum Company and its affiliates, as well as their directors, officers, employees, agents, successors and assigns, from and against all liabilities, losses, damages and costs, including reasonable attorneys’ fees, they may suffer as the result of third-party claims, demands, actions, suits or judgments against them resulting from or arising out of: (a) your violation of these Terms or applicable laws or regulations; or (b) your negligence or willful misconduct.
Copyright Infringement Claims
If you believe material located on the Website or elsewhere on the Services violates your copyright, you are encouraged to notify us in accordance with the Digital Millennium Copyright Act (“DMCA”) policy outlined herein. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Our designated Copyright Agent to receive notifications of claimed infringement is:
The Franklin Drum Company
2657 S 32nd Ave
Minneapolis, MN 55406
Attention: Ryan Moore
For clarity, only DMCA notices should go to the Copyright Agent. DMCA notices and counter-notices are only accepted to address copyright infringement claims and are not the proper method to report other legal claims. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid, and that there are legal sanctions that can apply for certain knowing and material misrepresentations in DMCA notices.
In the case of a user who may infringe the copyrights or other intellectual property rights of The Franklin Drum Company or others, we may, in our discretion, terminate or deny access to the Services. Please note that it is The Franklin Drum Company’s policy, in appropriate circumstances, to terminate the accounts of users who are repeat infringers or are repeatedly charged with copyright infringement. If you are a copyright owner or an agent thereof and believe that any content on the Website or the Services infringes on your copyrights, you may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material, including all URLs where the allegedly offending material is posted;
(d) Information reasonably sufficient to permit The Franklin Drum Company to contact you, such as an address, telephone number, and, if available, an electronic mail;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
UNLESS PROHIBITED OR RESTRICTED BY LAW AS AGAINST PUBLIC POLICY, ANY CLAIM OR DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE THE SERVICES OR THESE TERMS SHALL BE SUBMITTED TO ARBITRATION. ARBITRATION WOULD REMOVE YOUR RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT, INCLUDING DISCOVERY AND RIGHTS TO APPEAL, ARE GENERALLY MORE LIMITED IN ARBITRATION THAN IN A LAWSUIT, AND OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
ALL DISPUTES BETWEEN YOU AND THE FRANKLIN DRUM COMPANY, INCLUDING DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SERVICES, OR YOUR RIGHTS OF PRIVACY OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL, CONFIDENTIAL ARBITRATION BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. YOU AND THE FRANKLIN DRUM COMPANY HEREBY EXPRESSLY WAIVE TRIAL BY JURY. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY SEEK INTERIM RELIEF FROM ANY STATE OR FEDERAL COURT IN THE PARTY’S STATE OF RESIDENCE TO PROTECT THE PARTY’S INTELLECTUAL PROPERTY RIGHTS YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF.
THIS DISPUTE RESOLUTION PROVISION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION. IN ANY ARBITRATION, THE FRANKLIN DRUM COMPANY WILL PAY THE FILING, ADMINISTRATION, SERVICE OR CASE MANAGEMENT FEE, PLUS THE COSTS ASSOCIATED WITH THE FIRST DAY OF ARBITRATION, WITH THE REMAINING COSTS TO BE PAID BY THE NON-PREVAILING PARTY. UNLESS INCONSISTENT WITH APPLICABLE LAW, EACH PARTY SHALL BEAR THE EXPENSE OF THEIR RESPECTIVE ATTORNEYS’, EXPERTS’ AND WITNESS FEES, REGARDLESS OF WHICH PARTY PREVAILS IN THE ARBITRATION.
Class Action Waiver
UNLESS RESTRICTED OR PROHIBITED BY LAW AS AGAINST PUBLIC POLICY, ANY ACTION UNDER OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE OR OTHER SERVICES, WHETHER BEFORE A JUDGE OR JURY OR PURSUANT TO JUDICIAL REFERENCE, WILL TAKE PLACE ON AN INDIVIDUAL BASIS, WITHOUT RESORT TO ANY FORM OF CLASS OR REPRESENTATIVE ACTION (“CLASS ACTION WAIVER”). THIS CLASS ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING A CLAIM UNDER THESE TERMS. REGARDLESS OF ANYTHING ELSE HEREIN, THE VALIDITY AND EFFECT OF THE CLASS ACTION WAIVER MAY BE DETERMINED ONLY BY A COURT.
These Terms contain the complete, full, and exclusive understanding of the parties as to its subject matter. The Franklin Drum Company hereby reserves the right, in The Franklin Drum Company’s sole discretion, to make changes to these Terms. Such changes will become effective upon their posting. Accordingly, The Franklin Drum Company encourages you to review these Terms on an ongoing basis.
The headings contained in these Terms are for reference only and shall have no effect on the interpretation or application of these Terms. The Franklin Drum Company’s failure to enforce a breach by you of these Terms shall not waive or release you from such breach and shall not waive, release, or prevent The Franklin Drum Company from enforcing any subsequent breach by you of these Terms.
Arbitration or any other litigation shall take place in Franklin, TN, but may proceed telephonically if the parties so agree. These Terms shall be governed and enforced by applicable laws of the State of Tennessee, without regard to conflict of law provisions thereof.
If any term or provision of these Terms shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such term or provision shall be deemed null and void and shall not affect the application and/or interpretation of these Terms. The remaining terms or provisions of these Terms shall continue in full force and effect, as if the invalid or unenforceable term or provision was not a part of these Terms.