TERMS OF SERVICE

Updated: May 14th, 2022

WELCOME TO EVERWAVE™ A SERVICE PROVIDED BY HEXATONIC LLC, A DELAWARE LIMITED LIABILITY COMPANY (“PROVIDER”, “WE” OR “US”) WHICH PROVIDES ACCESS TO THE EVERWAVE WEBSITE, CURRENTLY LOCATED AT EVERWAVE.XYZ AND ALL SUBPAGES, ALONG WITH ANY EVERWAVE MOBILE APPLICATION (COLLECTIVELY, “SITE”), TOGETHER WITH ALL ENABLED FEATURES, FUNCTIONALITY AND SERVICES INCLUDING, WITHOUT LIMITATION, PROVIDER'S MUSIC CREATION PLATFORM CURRENTLY CALLED “EVERWAVE,” OFFERED BY US IN CONNECTION WITH THE SITE (COLLECTIVELY, “SERVICES”). THESE TERMS AND CONDITIONS (“TERMS”) GOVERN YOUR ACCESS AND USE (AS A REGISTERED USER OR OTHERWISE) OF THE SITE AND SERVICES.

By accessing or using the Site and/or Services in any way, you represent and warrant that you have read, understood, and accept and agree to be bound by these Terms. If you do not agree, you may not access or use the Site or Services. Your use of Provider’s music creation platform, if applicable, is separately governed by the Provider User Agreement, and any of its attachments or addendum, located here (https://www.everwave.xyz/agreement).

Terms of Access and Use

Subject to these Terms, we grant you a limited, non-exclusive, nontransferable personal license to access and use the Site and Services. By accessing the Site and using the Services, you represent and warrant that you are over eighteen (18) years of age or the applicable age of majority in your jurisdiction, and that you are either an individual acting on your own behalf, or the authorized agent of another individual or business. Your use of the Site and the Services as an authorized agent shall not relieve you of personal responsibility for your use of the Site and the Services. The rights granted to you by these Terms may be revoked by Provider at any time, in its sole discretion.

Registration and Accounts

In order to use certain features of the Site or Services, including uploading and mixing User Content (defined, below) on Everwave, you may be required to register for an account ( “Account”) with us and provide certain information about yourself as prompted by the Account registration form. You represent and warrant that all required registration information you submit is truthful and accurate, and that you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from unauthorized access to your Account or your failure to comply with the above requirements.

Privacy

For information regarding our collection and use of information you provide to us, please refer to the Site's privacy policy (“Privacy Policy”), located here (https://everwave.xyz/privacy) which shall supplement and be incorporated into these Terms by reference. By entering into these Terms, you agree to our collection, use and disclosure of your personal information in accordance with our Privacy Policy.

User Content and Activity

The features and functionality of the Site and/or Services may allow users to submit, upload, store, edit, modify, create and/or share comments, questions, messages, audio, images, artwork, photographs, text and other content, information or materials (“User Content”) directly through the Site and/or Services, and users shall be able to share, edit and modify such User Content using the features made available by the Site and/or Services from time to time. The functionality of the Site and/or Services may allow registered users to make certain User Content publicly available for other users (registered or unregistered) to view, listen to and share. Other features of the Site and/or Services may enable users to privately submit and share messages between users or to upload files to store and share for private use. The foregoing activities described in this paragraph are sometimes collectively referred to herein as “User Activity”.

You are solely responsible for the User Content you submit through the Services as well as your User Activity generally. You agree that, through our Services and at your direction, we are only acting as a passive conduit for your online distribution, storage, publication and/or other exploitation of your User Content. Between you and Provider, Provider does not claim any ownership rights with respect to your User Content. By uploading, publishing, modifying, displaying or otherwise submitting User Content to any part of the Site and/or Services, you automatically grant, and you represent and warrant that you have the right to grant, to us, as well as to other users of the Services, a non-exclusive, transferable, fully paid, worldwide license to use, copy, reproduce, publicly perform, publicly display, edit, modify, communicate to the public, stream, listen to, make available, reformat, translate, excerpt (in whole or in part), transmit, re-post and distribute such User Content for any purpose on or in connection with the Site and Services.

As part of the User Activity you may have the ability to edit, modify or use User Content for the purposes of creating one or more music mixes alone or with other users (each, a “Version”) which may then be combined with versions created by other users of the Services to create one of more of our proprietary musical waves (each, a “Wave”). To the extent you participate in the creation of any Versions, you agree that each Version created and the Wave in which it is embodied are the sole and exclusive Intellectual property of Provider, including all copyright rights therein, including without limitation any musical composition copyrights. By participating in User Activity which results in the creation of any Versions, you agree any such Versions are made as a work made for hire under U.S. Copyright Law for our benefit, to the extent such activity on your part in creating the Versions is not deemed to be a work made for hire, then you automatically grant, and you represent and warrant that you have the right to grant, to us an exclusive, transferable, fully paid, worldwide license to use, copy, reproduce, publicly perform, publicly display, edit, modify, communicate to the public, stream, listen to, make available, reformat, translate, excerpt (in whole or in part), transmit, re-post and distribute such Versions (whether alone or as part of any of our Waves) for any purpose whatsoever.

You represent, warrant and agree that: (a) you have the right to agree to these Terms; (b) all of your User Content is original with you, in the public domain throughout the world or used by you with the express consents, permissions or licenses necessary from the original owner(s) of such materials for use by you and us pursuant to these Terms; (c) your User Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of publicity and privacy; (d) Provider shall not be responsible for payments or any other liability to any third party in connection with the use of your User Content on the Site, Services or otherwise in connection with these Terms; and (e) none of your User Content or Versions contain material which is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, otherwise objectionable or content that may be deemed to constitute “hate speech”;

Provider reserves the right to reject and/or remove any User Content, Versions, Waves or other content that Provider believes, in its sole discretion, violates these provisions. Provider takes no responsibility and assumes no liability for any User Content, Versions and/or Waves that you or any other users or third parties post, use, store or share through the Site and/or Services. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility. Provider is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that Provider shall not be liable for any damages you allege to incur as a result of such User Content.

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Restrictions

You agree not to submit User Content or otherwise take part in User Activity that:
(a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or other third party; (b)
may create a risk of any other loss or damage to any person or property; (c)
seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; may constitute or contribute to a crime or tort; (d)
contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, otherwise objectionable or content that may be deemed to constitute “hate speech”
contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (e)
contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (f) or contains any information or content that you know is not correct and current.

In addition to the restrictions listed above, you may not: (a) rent, transfer, assign, resell or sublicense access to the Site and/or Services to any third-party; (b) combine or integrate the Site and/or the Services with hardware, software or other technology or materials not provided by us; (c) modify or create any derivative product based on the Site and/or the Services; (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site and/or the Services is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code; (e) use the Site and/or the Services to: (i) violate any local, state, national or international law; (ii) stalk, harass or harm another individual; (iii) collect or store personal data about other users; (iv) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (v) interfere with or disrupt the Site, Services or servers or networks connected to the Site and/or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site and/or Services; (f) use any high volume, automated, or electronic means to access the Site and/or Services (including, without limitation, robots, spiders or scripts); (g) or
frame the Site and/or Services, place pop-up windows over its pages, or otherwise affect the display of its pages, without our prior written consent.

You agree not to use the Service for any commercial uses unless you obtain our prior written approval. Such commercial uses include without limitation (i) the sale of access to the Site and/or Service; and (ii) the sale of advertising, sponsorships, or promotions placed on or within the Site and/or Service. 

We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

Except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.

Ownership

As between you and us, we retain all right, title and interest in and to the Site, Services and any Versions created by you as part of the User Activity, and all related intellectual property rights. All rights in and to the Site, Services, Versions and Waves not expressly granted herein are reserved. You may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of versions and/or Waves), or create derivative works from any copyrighted work made available or accessible via the Site or the Services. All trademarks, logos and service marks (“Marks”) displayed on the Site or Services are either our property, or the property of third parties. You are not permitted to use these Marks without our prior written consent, or the consent of such third party owner of the Mark(s) if not owned by Provider.

As between you and us, you retain all right, title and interest in and to your User Content, subject to the perpetual licensed rights granted to us in Section 4, above.

E-Delivery

By using the Site and/or Service, you consent to the electronic delivery of all documents and notices regarding your Account. You also confirm that you have the ability, necessary equipment and software to access and view any documents or notices we send you. You are entitled to withdraw your consent to electronic delivery at any time by emailing us at support at contact@everwave.xyz. Should you withdraw your electronic delivery consent, you are entitled to receive a paper copy of all required notices and documents. Some notices and documents which we are not required to provide you will not be sent to you should you withdraw your consent to electronic delivery.

Copyright Claims

We respect the intellectual property rights of others. If you believe that any content on our Site and/or Services infringes upon your copyright or the copyright of someone you represent, please send an e-mail or other written notice to our Designated Copyright Agent using the contact information provided below (each, a “Notice”). All Notices should meet the requirements of the Digital Millennium Copyright Act (DMCA) 17 U.S.C. § 512(c)(3) and include the following information:

(a) an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;

(b) identification of the copyrighted work claimed to have been infringed;

(c) a description of where the material that you claim is infringing is located on the Site and/or Services, and information reasonably sufficient to permit us to locate the material;

(d) your address, telephone number, and e-mail address;

(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our designated Copyright Agent for notice of claims of copyright infringement is:
Copyright Agent, Hexatonic LLC [1320 Northside Avenue Berkeley, San Francisco 94702] Email: contact@everwave.xyz 

In accordance with the DMCA and other applicable law, Provider has adopted a policy of terminating, in appropriate circumstances and in Provider's sole discretion, users who are deemed to be repeat infringers. For the avoidance of doubt, the foregoing sentence in no way limits Provider's right to limit access to the Site and Services and/or terminate the Accounts of any users for any reason, in Provider's sole discretion, including, without limitation, in the case of users who infringe, or allegedly infringe, any Intellectual Property Rights of others, whether or not there is any repeat infringement.

Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notice. Thus, if you are not sure that material located on or linked to by the Site and/or Services infringes your copyright, you should consider first contacting an attorney.

Links to Third-Party Websites or Services

You may be able to access websites, content, products or services provided by third parties through links that are made available on the Site (“Third Party Services”). For example, we may include links to various digital music services. If you elect to use such Third Party Services, you understand that your use of them will be subject to any terms and conditions required by the applicable third parties. You understand that Provider is not the provider of, and (to the maximum extent legally permitted) is not responsible for, any such Third Party Services or any transactions or use thereof. Where the Site includes any links to Third Party Services, this does not imply any endorsement by us of the goods, services or materials available on such Third Party Services.

Third Party Content Policy

Any content made available on or through the Site and/or Service which contains or displays a third-party logo (i.e., YouTube, Vimeo, etc.) or which is provided via a third party’s player and is hosted on a third party’s servers; Provider does not have the ability to permanently remove all or any such content from the third party’s servers. Therefore, if you have a complaint concerning any content made available on the Service that is provided by a third party, you should contact the third party directly in accordance with copyright policies of the third party. If you believe that your work is available on the Site and/or Service via a third-party in a way that constitutes copyright infringement, please: (1) contact the third party directly in accordance with its copyright policies; and (2) contact Provider by sending us a Notice.

Hold Harmless and Limited Liability

You agree to use the Site and/or Services at your own sole risk, and agree to hold harmless Provider and its licensors and/or any of our or their respective successors and assigns from any and all liability, harm, damages, costs (including attorney's fees and legal and court costs), expenses, allegations, claims and legal action of any kind at any time or of any sort that may arise from your use of the Site or Service, any violation of these Terms or of applicable law, or any third party claim of infringement of any Intellectual Property Rights, or any other right, arising from the hosting, making available or any other use of your User Content on the Site and/or Services. Your agreement to these Terms shall permanently and wholly bar you from any legal action of any sort towards Provider for the use of the Site and/or Services or any resultant effects of any sort, shape, kind or type, including any statutory and/or tort actions, specifically inclusive of any legal, action of any type, kind, or sort.

ALL INFORMATION, CONTENT AND MATERIALS PROVIDED VIA THE SITE AND/OR SERVICES ARE PROVIDED “AS IS.” WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, INCLUDING BUT NOT LIMITED TO THE ACCURACY, TIMELINESS OR USEFULNESS OF ANY INFORMATION OR MATERIALS PROVIDED VIA THE SITE OR SERVICE. WE CANNOT GUARANTEE THAT ACCESS TO OR USE OF THE SITE AND SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE. WE EXPRESSLY DISCLAIM ALL WARRANTIES TO THE FULLEST EXTENT OF THE LAW. NEITHER PROVIDER NOR ANY OF OUR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, AGENTS, PREDECESSORS, SUCCESSORS, LICENSORS OR ASSIGNS SHALL BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES INCURRED IN CONNECTION WITH USE OF, OR INABILITY TO USE, THE SITE OR SERVICES OR ANY OF THE INFORMATION OR MATERIALS PROVIDED ON THE SITE OR SERVICES, OR ANY DAMAGE OR LOSS, INTERRUPTIONS, ERRORS, DEFECTS, OR DELAYS IN PERFORMANCE, REGARDLESS OF THE CLAIM AS TO THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. OUR AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF OUR LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100. THE FOREGOING IS APPLICABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

Modifications

We may change these Terms from time to time, and expect to do so as we evolve and expand the Services. If we do this, we will post the changes to the Terms on this page and will indicate the effective date of the Terms at the top of this webpage. Any such changes will become effective immediately upon your assent thereto. Continuing use of the Site and the Services after changes to the Terms have been posted shall be deemed assent to the changes. If you object to any such changes, your sole recourse will be to cease using the Site and the Services. Continued use of the Site or the Services following posting of any such changes will indicate your acknowledgement of such changes and your agreement to be bound by the revised Terms, inclusive of such changes.

Indemnity

You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of these Terms, (b) your use of the Site and/or Service, and/or (c) the use of the Service by any other person using your username, password and/or Account. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.

Choice of Law and Jurisdiction

The Site and/or Service is created, operated and controlled by Provider in the State of Delaware, United States of America. The laws of the State of Delaware will govern these Terms without giving effect to any principles or conflicts of laws. Some of the Site and/or Service are only intended for persons in those states and jurisdictions where such products and services may legally be offered. Accordingly, the Site and/or Service shall not be considered a solicitation to buy or an offer to sell any products or services to any person in any jurisdiction where such offer, solicitation, purchase or sale would be unlawful.

YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Disclaimers and Disclosures

The Site and/or Service may include inaccuracies or typographical errors. Provider reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Service, or to deny access to the Service to anyone at any time. You acknowledge and agree that Provider is not responsible for any User Content posted by users of the Service.

Advice received via the Service should not be relied upon for personal, medical, legal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation. You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Service is at your sole risk. Prior to making any decisions based on information posted on the Service, you are advised to verify the information, indecently. Provider shall not have any liability arising from your acts or decisions based upon the information provided on the Service.

When it comes to buying products or services when using the internet, it is recommended that you always conduct your own investigations. This includes buying any products or services offered or sold as part of, or through, the Service.

Unless we have stated otherwise, you should always assume that when products or services are made reference to as part of the Service, they are made because there exists a material connection between Provider and the providers of the products and services displayed. It should be noted that this is not always the case.

Where extracts have been displayed from third party sources or content has been generated and posted by a third-party source (i.e., Content Providers, etc.), these are in no way indicative of any kind of verifiable result, opinion, recommendation or otherwise. You are strongly cautioned to conduct your own due diligence prior to relying on such sources.

You understand that by using the Service, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service at your sole risk and that Provider shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content descriptions are provided for convenience, and you acknowledge and agree that Provider does not guarantee their accuracy. If you are a consumer in the EEA (European Economic Area), we do not exclude or limit any liability for gross negligence, intent, or death or personal injury caused by our negligence or willful misconduct.

Termination

These Terms and the Privacy Policy constitute the entire agreement between you and us with respect to your access to and use of the Site and Services. We reserve the right to terminate these Terms, your Account, and your access to the Site and the Services at any time without notice. Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms. Any action taken by us to terminate or suspend your use of the Site and/or Service will not limit any other rights or remedies which are available to us. You may delete your Account at any time, for any reason, by following the instructions on the Site. You may also terminate these Terms by ceasing to use the Site and/or Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Termination of this Agreement shall not terminate your grant to Provider of the perpetual license to use User Content (i.e., Versions) as integrated into any Wave(s) under the terms of a User Agreement.

Restricted Persons

You represent and warrant to Provider that you (a) are not designated on any sanctions- or export- related list of restricted or blocked persons, including designation on the U.S. Department of the Treasury Office of Foreign Asset Control's (“OFAC”) List of Specially Designated Nationals and Blocked Persons, (b) are not located in, organized under the laws of, or resident in any country or territory that is itself the subject of any economic or financial sanctions by any U.S. or other relevant governmental authority, including, but not limited to, Cuba, Iran, Syria, North Korea, Venezuela and the Crimea Region of Ukraine, (c) are not greater than 50% owned or controlled by any persons described in clause (a) or (b) (collectively with (a) and (b), a “Restricted Person”), (d) will not violate or cause Provider to violate any economic sanctions, including those administered by OFAC, in connection with the Site and/or Services, and (e) will notify Provider immediately of any breach of the terms described in clauses (a) through (d).

Miscellaneous

If any provisions hereof are deemed invalid or unenforceable, they will be severed or construed to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect. No waiver of any provision by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The Site and Services are hosted and operated in the United States of America and we make no representation that any content is appropriate for access outside of the United States. Those who choose to access the Site and Service from outside the United States do so on their own initiative and are responsible for compliance with local laws. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement. You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.