TERMS OF SERVICE
Last Revised on Feb 26th, 2022
Welcome to the Terms of Service (these “Terms”)for the website, www.makelayers.com (the “Website”),and the related mobile application (“MobileApp”) and desktop application (collectively, the “Apps”) operated on behalf of Layers Media, LLC (“Company”, “we” or “us”). The Website and any software, content, tools, features and functionality offered on or through our Website and the Apps are collectively referred to as the “Services”.
TheseTerms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you”includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 8 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us related to the Services through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You have the right to opt-out of arbitration as explained in Section 8.
1. Who May Use the Services
You must be 13 years of age, or 16 years of age if you are an individual within the European Union (EU), or older to use the Services. By using the Services, you represent and warrant that you meet this requirement.
3. User Accounts
3.1 Creating and Safeguarding your Account. To use certain of the Services, you need to create an account (“Account”).You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password.We are not liable for any acts or omissions by you in connection with yourAccount. You must immediately notify us at [email protected] if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed you, or we previously banned you from any of our Services, unless we consent otherwise.
3.2 Layers Accounts. We may invite you to make an Account and use the Services as a Layers Member. As a Layers Member, you will be invited to make and upload Sparks and Flips (each as defined below) to the Services. We have the right to remove your status as a Layers Member at any time in our sole discretion.
4. Rights We Grant You
4.1 Right to Use Services. We hereby permit you to use the Services for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. We hereby grant you, a personal, non-assignable, non-sub licensable, non-transferrable, and non-exclusive right and license to download, execute and display the software, tools, content and materials provided to you as part of the Services (and right to download a single copy of the Apps onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take. We make no warranties regarding how our software, tools and Services will interact with your systems and files.
4.2 Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
4.3 Use of the Mobile App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the MobileApp. We do not guarantee that the MobileApp can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the Mobile App will be available in any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the Mobile App (“PushMessages”). You acknowledge that, when you use the Mobile App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these PushMessages through the Services or through your mobile device’s operating system(with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Mobile App, including your receipt of Push Messages from the Company. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Mobile App on your mobile device, including for your receipt of push messages from the Company.
5. Ownership and Content
5.1 Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, software, and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than your Sparks and Flips, which are solely owned by you), including, without limitation, the exclusive right to create derivative works.
5.2 Ownership of Trademarks. The Company’s name, trademarks and logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
5.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
5.4 Beta Features. From time to time, we may, in our sole discretion, include certain test or beta features in the Services (“Beta Features”). Your use of any Beta Feature is voluntary. You agree that once you use a Beta Feature, your content or data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the prior non-beta version. The Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk. If you have entered into a separate agreement with us for use of any Beta Features (a “Beta Agreement”), then the Beta Agreement will supersede and control over these Terms.
5.5 Sparks License Grant. In connection with your use of the Services, you will be able to post, upload, or submit original music and video content created by you that will be made available to other end users through the Services (“Sparks”). You will retain ownership of all rights to your Sparks, including any intellectual property rights. By posting or submitting Sparks through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for your Sparks (including, without limitation, any permissions required from your record label, if applicable). You agree that your Sparks will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above. We reserve the right to remove any Sparks that are indecent, defamatory, obscene, violent, threatening, discriminatory or in violation of these Terms or any applicable laws. When you upload Sparks to the Services, you grant us the right to access, use, store, display, reproduce and publish your Sparks on the Services solely as required to be able to operate and provide the Services, including for any related promotional and marketing purposes, (and to allow and sublicense to other users of the Services a right to make and distribute Flips based on your Sparks, as specified below).
5.6 We are building through the Services a community of users who are able to build off each other’s contributions to mix and make new music using each other’s submissions. Thus, you agree that, as part of the license grant set forth above in Section 5.5, we have the right to sublicense to other end users of the Services the non-exclusive right to (i) comment on and/or tag your Sparks, (ii) download, publish, display, perform, modify, create derivative works of or include a copy of your Sparks in music and video content created as part of their own use of the Services (such content, “Flips”) and/or (iii) to publish, display, perform or post Flips on such end users’ own social media channels.
5.7 Flips License Grant. As noted above, in connection with your use of the Services, you may be able to download other end users’ Sparks and display, modify and create derivative works of such Sparks to create your own Flips as part of your use of the Services. For the avoidance of doubt, you are not allowed to commercialize any Flips outside of the Services (e.g., by making such Flips available for download on third party platforms or by releasing commercially licensed versions of such Flips) absent a written agreement with the owner of the original Sparks. By posting or submitting Flips through the Services, you represent and warrant that any of the original content in your Flips will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above. We reserve the right to remove any Flips that are indecent, defamatory, obscene, violent, threatening, discriminatory or in violation of these Terms or any applicable laws. When you upload Flips to the Services, you grant us the right to access, use, store, display, reproduce and publish your Sparks on the Services solely as required to be able to operate and provide the Services including for any related promotional and marketing purposes, (and to allow and sublicense to other users of the Services a right to make and distribute Flips based on your Flips, as specified below). As part of the license grant set forth in the prior sentence, you also acknowledge and agree that we have the right to sublicense to other end users of the Services the non-exclusive right to (i) comment on and/or tag your Flips, (ii) download, publish, display, modify, create derivative works of or include a copy of your Flips in their own Flips and/or (iii) to publish, display, perform or post Flips incorporating your Flips on such end user’s social media channels.
5.8 Notice of Infringement – DMCA and Copyright Policy
If you are the owner or authorized agent of an owner of a copyrighted work and you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services is used in a way not authorized by the copyright owner, its agent, or the law, you may submit a notification to our Designated Copyright Agent in accordance with 17 U.S.C. § 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
(a) identification of the copyrighted work that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owner, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement should be sent by mail to: Layers Media LLC, Attn: Jonathan Lee, 28 N 3rd st, A508, Alhambra CA 91801; or by e-mail to [email protected]. It is our policy, in appropriate circumstances and at our discretion, to terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
A user of the Services who has uploaded or posted materials identified in a notice submitted to Layers Media’s Designated DMCA Agent as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we inform the person or entity who submitted the notice of copyright infringement. If such person or entity does not provide us notice of filing suit within 10 days, we may reinstate the posts or material in question. To submit a counter-notification, you must provide a written communication (by fax or regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA.
Please note that you will be liable for damages if you (i) submit false notices of copyright infringement or (ii) materially misrepresent that content or an activity is not infringing the copyrights of others.
5.9 Request for removal
If you identify any Sparks or Flips which you consider to be indecent, defamatory, obscene, violent, threatening, discriminatory or in violation of these Terms or any applicable laws, you may submit a notification to [our customer service team],by providing the following information in writing:
(a) identification of the relevant Spark or Flip or material that is requested to be removed, including a description of where it is located on the Service;
(b) information for our [customer service] agent to contact you, such as an address, telephone number and e-mail address; and
(c) a statement as to why you consider the relevant Spark or Flip or material to be indecent, defamatory, obscene, violent, threatening, discriminatory or in violation of these Terms or any applicable laws.
We will review such notifications and (i) delete illegal content or (ii) at our discretion suspend, disable, or delete the relevant Spark, Flip or material if we consider the relevant Spark, Flip or material to violate these Terms.
6. Third Party Services and Materials
6.1 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
7. Disclaimers, Limitations of Liability, and Indemnification
7.1 Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, corruption of your files, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, your Sparks and Flips and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
7.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) your Sparks and/or Flips; or (e) your negligence or willful misconduct.
8. Arbitration and Class Action Waiver
8.1 Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
8.2 Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim, except as permitted herein. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you.
8.3 Waiver of Class Actions and Class Arbitrations. You and Company agree that each party may bring Claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties.
8.4 Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
8.5 Opt-Out. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to opt-out to [email protected] or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering to use the Services or agreeing to these Terms (or if this Section 9 is amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with these Terms, and the notice must specify your name and mailing address. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
8.6 Exceptions. Notwithstanding anything in these Terms to the contrary, You may instead assert your Claim in “small claims” court, but only if your Claim qualifies, your Claim remains only in such court, and your Claim remains on an individual, non-representative and non-class basis. Further, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, or if the Claim relates to intellectual property infringement or misappropriation.
9. Additional Provision
9.1 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
9.2 Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of your Sparks and Flips. The Company shall not be responsible for the failure to delete or deletion of your Sparks and Flips. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
9.3 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
9.4 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
9.5 Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
9.6 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Los Angeles, California. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
9.7 How to Contact Us. You may contact us regarding the Services or these Terms at: 28 N 3rd St, Unit A508, Alhambra CA 91801, by phone at 646-543-9681 or by e-mail at [email protected].