Last updated 01/23/20
First Resonance, Inc. (“First Resonance”, “we”, “our”, “us”) offers ion (“the Service”). Please read these terms and conditions (“terms”, “terms and conditions”) carefully before using the Service.
1.1 General. To use the Service, you must be, and represent and warrant that you are, at least 13 years of age and competent to agree to these Terms.
1.2 Location. These Terms are applicable to users located in the United States only. If you are located outside of the United States, you will be presented with a different set of terms.
2.1 Account Registration and Confidentiality. To access the Service, you must register for a First Resonance account by creating a username and password. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you.
2.2. Unauthorized Account Use. You are responsible for notifying us at legal@firstresonance.io if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. First Resonance will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by First Resonance or a third party due to someone else using your account, unless such losses are caused by an unrelated third party or by failure of First Resonance to maintain a safe and secure system.
The Services is owned and operated by First Resonance and contain materials (including but not limited to all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by First Resonance and its partners, as well as other sources, and are protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service is also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service. You acknowledge that the Service has been developed, compiled, prepared, revised, selected, and arranged by First Resonance and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of First Resonance and such others. You agree to protect the proprietary rights of First Resonance and all others having rights in the Service during and after the term of these terms and to comply with all written requests made by First Resonance or its suppliers. You agree to notify First Resonance immediately upon becoming aware of any claim that the Service infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service, as between you and First Resonance, at all times be and remain the sole and exclusive property of First Resonance. Any unauthorized use of any material contained on or through the Service may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
4.1 User Content and Submissions on the Service. The Service allows you to create tests and submit associated information, text, files, and the other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available to the Service is subject to the following terms:
4.1.1. User Content Ownership and License. You retain all right, title, and interest in and to the User Content. You grant First Resonance the right to use the User Content to perform under the Agreement. You also grant First Resonance the non-exclusive, perpetual, irrevocable, worldwide, royalty-free and fully paid, transferable, sub-licensable right and license to use User Content to create aggregate data sets and insights, and to improve First Resonance’s products and services (including the Service); all results of the exercise of such license shall be owned by First Resonance, provided that, any retained User Data must be aggregated and anonymized (i.e., must not disclose information that could reasonably identify you).
4.2 Feedback on the Websites. The Service may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to First Resonance and share such Feedback with other users, or the public. By submitting Feedback through the Websites, you grant First Resonance an exclusive, perpetual global license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other First Resonance marketing materials and where required to do so by law or in good faith to comply with legal process.). We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.
4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that First Resonance does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless First Resonance for all claims resulting from User Content or Feedback you submit through the Service and/or Websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses, unless doing so will be at the detriment to First Resonance or you.
5.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to access and use the Service and Websites only for your own internal use (or, for Subscribers, uses authorized by the Customer), and only in a manner that complies with all legal requirements that apply to you or your use of the Service and Websites, including the First Resonance Privacy Policy and these Terms. First Resonance may not revoke this license without at least thirty (30) days written notice to Company in which time Company may then work to copy and backup all data input into the Service, provided that First Resonance may suspend access to the Service in case you violate these Terms.
5.2 Acceptable Use. All Users must comply with the following rules regarding acceptable use of the Service and Websites. Disruption of the Service. You may not: access, tamper with, or use non-public areas of the Service and Websites, First Resonance’s computer systems, or the technical delivery systems of First Resonance’s providers; probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure; access or search the Service and Websites by any means other than First Resonance’s publicly supported interfaces (for example, “scraping”); attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service and Websites, or by scripting the creation of User Content in such a manner as to interfere with or create an undue burden on the Service and Websites.
Misuse of the Service and Websites. You may not utilize the Service and Websites to carry out, promote or support: any unlawful or fraudulent activities; the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others; activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking; the publishing or posting of other people’s private or personal information without their express authorization and permission; the sending of unsolicited communications, promotions advertisements, or spam; the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or the promotion or advertisement of products or services other than your own without appropriate authorization.
User Content Standards Within the Service and Websites. You may not post any User Content on the Service or Websites that: violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity; is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking; contains any personal information of minors; contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without First Resonance’s prior written consent granted as part of a Customer Agreement; contains viruses, bots, worms, or similar harmful materials; or contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Violations of this Section 5. In addition to any other remedies that may be available to us, First Resonance reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Service or Websites, upon notice and without liability for First Resonance should you fail to abide by the rules in this Section 5 or if, in First Resonance’s sole discretion, such action is necessary to prevent disruption of the Service or Websites for other users.
For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms.
THE SERVICE AND WEBSITES AND USER CONTENT, WHETHER PROVIDED BY FIRST RESONANCE, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE AND WEBSITES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, FIRST RESONANCE DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICE AND WEBSITES IS FREE OF ERRORS; OR (ii) THE SERVICE AND THE WEBSITE WILL BE FREE OF ERRORS. IN NO EVENT SHALL FIRST RESONANCE OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE AND WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE AND WEBSITES, WHETHER OR NOT FIRST RESONANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE OR WEBSITES TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100. FIRST RESONANCE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE AND WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE AND WEBSITES, AND FIRST RESONANCE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICE AND WEBSITES. FIRST RESONANCE WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 7. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 7 specifically do apply to you.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD FIRST RESONANCE AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, CONTRACTORS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICE AND WEBSITES, YOUR CONNECTION TO THE SERVICE AND WEBSITES, YOUR VIOLATION OF THE TERMS OR FIRST RESONANCE’S PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICE AND WEBSITES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER INDIVIDUAL OR ENTITY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU MAY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
The Service and Websites may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. First Resonance is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that First Resonance shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
First Resonance reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and Websites (or any part thereof), with or without notice.
These Terms shall be construed in accordance with and governed by the laws of California notwithstanding its conflicts of law principles. Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Los Angeles County, California, and you and First Resonance consent to the exclusive jurisdiction of such courts.
13.1 Force Majeure. Under no circumstances shall First Resonance or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
13.2 No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of First Resonance to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
13.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
13.4 Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service and Websites and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
13.5 Miscellaneous. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by First Resonance without restriction, upon notice to you. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of First Resonance. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Service and Websites for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
13.6 Notices. We may deliver notice to you by e-mail, posting a notice on the Service and Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) First Resonance, 600 Wilshire Blvd, Suite 1540, Los Angeles, CA 90017; or (2) legal@firstresonance.io
If you have any questions about these Terms, please contact us at legal@firstresonance.io.