PLEASE BE AWARE THAT SECTION 14 OF THE AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEVE AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THE AGREEMENT. If you do not agree to this Agreement, including the mandatory arbitration provision and class action waiver in Section 14, do not access or use our Services.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY LYREBIRD STUDIO IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available at our website and within our mobile application. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, we will also send push notification or show a pop-up to you via the applications. Any changes to the Agreement will be effective immediately for new users of the website, the mobile applications and/or the Services and will be effective thirty (30) days after posting notice of such changes on our website for existing users, provided that any material changes shall be effective for existing users upon the earlier of thirty (30) days after posting notice of such changes on the website or thirty (30) days after dispatch of the push notification of such changes. We may require you to provide consent to the updated Agreement in a specified manner before further use of the website, the mobile applications and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services, including the website and the mobile applications. Otherwise, your continued use of the Services, including the website and the mobile applications, constitutes your acceptance of such changes. PLEASE CHECK THE WEBSITE REGULARLY TO VIEW THE THEN-CURRENT AGREEMENT.
You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept this Agreement on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates this Agreement.
You acknowledge that some of the Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Lyrebird Studio may place such advertising and promotions on the Services or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
You represent and warrant that: (i) you own or otherwise have the right to use the User Content modified by you on or through the Services in accordance with the rights and licenses set forth in this Agreement; (ii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you stylize on or through the Services; and (iii) you have the legal right and capacity to enter into this Agreement in your jurisdiction.
You may not create, post, store or share any User Content that violates this Agreement or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
Lyrebird Studio does not provide a backup service and you agree that you will not rely on the Services for the purposes of User Content backup or storage. Lyrebird Studio will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any User Content.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, page headers, button icons, scripts, service marks, logos, slogans, filters, user generated filters and other content contained therein (collectively, the “Lyrebird Studio Content”) are owned by or licensed to Lyrebird Studio and are protected under both United States and foreign laws. Except as explicitly stated in this Agreement, Lyrebird Studio and our licensors reserve all rights in and to our Services and the Lyrebird Studio Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Lyrebird Studio Content for your own personal use; however, such license is subject to this Agreement and does not include any right to: (a) sell, resell or commercially use our Services or Lyrebird Studio Content; (b) copy, reproduce, distribute, publicly perform or publicly display Lyrebird Studio Content, except as expressly permitted by us or our licensors; (c) modify the Lyrebird Studio Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Lyrebird Studio Content, except as expressly set forth in this Agreement; (d) use any data mining, robots or similar data gathering or extraction methods; or (e) use our Services or Lyrebird Studio Content other than as expressly provided in this Agreement. Any use of our Services or Lyrebird Studio Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted under this Agreement. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Lyrebird Studio Content.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Lyrebird Studio or our products or Services (collectively, “Feedback”), is non-confidential and we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You hereby grant to Lyrebird Studio a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Lyrebird Studio’s business.
We have a policy of limiting access to our Services and terminating the accounts of users who repeatedly infringe the intellectual property copyright rights of others upon prompt notification to us by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on or through the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; € a written 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, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Lyrebird Studio and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Lyrebird Studio Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of this Agreement; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Lyrebird Studio Parties of any third party Claims, cooperate with Lyrebird Studio Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Lyrebird Studio Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Lyrebird Studio or the other Lyrebird Studio Parties.
We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. In addition, Lyrebird Studio does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Lyrebird Studio attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
LYREBIRD STUDIO AND THE OTHER LYREBIRD STUDIO PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF LYREBİRD STUDİO OR THE OTHER LYREBİRD STUDİO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF LYREBIRD STUDIO AND THE OTHER LYREBIRD STUDIO PARTIES, FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OUR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ACCESS OR USE OUR SERVICES.
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Lyrebird Studio or the other Lyrebird Studio Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Lyrebird Studio and the other Lyrebird Studio Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
By accessing or using our Services, you acknowledge and, as applicable, consent to the processing, transfer and storage of information about you in and to the United States and other countries.
Please read the following section carefully because it requires users who are U.S. residents to arbitrate certain disputes and claims with Lyrebird Studio and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. Except for small claims disputes in which you or Lyrebird Studio seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Lyrebird Studio seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Lyrebird Studio waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here]. The arbitration will be resolved through confidential binding arbitration by the Judicial Arbitration and Mediation Services (“JAMS”), an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Lyrebird Studio will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conduced by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You may choose to have the arbitration conduced by telephone, based on written submissions or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Lyrebird Studio. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND LYREBİRD STUDİO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Lyrebird Studio are instead electing that all disputes, claims or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited. Review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt-Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the e-mail address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
You and Lyrebird Studio agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Severability. Except as provided in this Section 14 above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Lyrebird Studio.
Modification, Notwithstanding any provision in this Agreement to the contrary, we agree that if Lyrebird Studio makes any future material change to this Arbitration Agreement you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: firstname.lastname@example.org.
This Agreement and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of California, consistent with the Federal Arbitration Act, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The United Nations Convention for the International Sale of Goods does not apply to the Agreement. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara County, California.
By accessing or using the Services, you also consent to receive electronic communications from Lyrebird Studio (e.g., responses to your requests, questions and feedback, announcements, updates, and security alerts through a push notification or by posting notices on our Services). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
The following terms apply if you install, access or use the Services on any device that contains the iOS mobile operating system (the “App”) developed by Apple Inc. (“Apple”).
Users may not download, use, export or re-export any materials or Content (including User Content and Lyrebird Studio Content) posted or submitted on or through the Lyrebird Studio Services or any software utilized or available in connection with the Lyrebird Studio Services in violation of any applicable laws or regulations, including, without limitation, United States export laws, regulations and controls.
The Lyrebird Studio Services may include fee-based subscriptions giving you access to enhanced levels of Lyrebird Studio Services and additional Lyrebird Studio Content. A Lyrebird Studio Fee-Based Subscription is sold to an individual Lyrebird Studio user, and you may not share that subscription with anyone else. Payment of a fee to Lyrebird Studio for enhanced levels of Lyrebird Studio Services does not change the service license Lyrebird Studio grants to you under the Terms. You may access and make use of such enhanced Lyrebird Studio Services on up to ten devices on a single operating system.
The Lyrebird Studio Services that may be accessed after payment are subject to a payment of certain fees as determined by us from time to time, which shall be made via credit card or such other payment method as accepted or directed by Lyrebird Studio. All subscription fees are quoted in U.S. Dollars unless otherwise specified by Lyrebird Studio. The subscription fees are exclusive of all taxes, which shall be borne by you.
The paid subscription to these Lyrebird Studio Services is based on an auto-renewal basis. As such, your subscription will automatically renew upon the end of your applicable subscription period (e.g., annual basis) corresponding to the term of your subscription unless cancelled in accordance with the terms of your subscription. If your subscription renewal begins on a day not contained in a given month, then we will charge you on the last day of such month. You acknowledge and agree that the timing of when you are billed and the amount billed may vary due to free trials and other promotional offers, credits applied to your account, and changes in your subscription, and you hereby authorize us to charge you for the corresponding amounts. You are solely responsible for ensuring that your billing and payment information is correct to prevent your subscription from being cancelled. If we cannot charge your payment method for any reason (such as expiration or insufficient funds), and you have not cancelled your subscription, you remain responsible for any uncollected amounts, and we will attempt to charge the payment method as you may update your payment method information. This may result in a change to the start of your next subscription period and may change the date on which you are billed for each period. We reserve the right to cancel your subscription if we are unable to successfully charge your payment method to renew your subscription. When your subscription ends, you will lose access to the Lyrebird Studio Services that require a subscription.
If we offer you a promotion or a promotional price for your subscription, the specific terms of the promotion will be disclosed or made available to you when you select your subscription plan and agree to the Additional Terms that will be provided to you and describe the particular promotion for your selected subscription plan. In the case of promotional pricing, after your promotion ends, we will begin billing you for your subscription at the regular price after the promotion ends unless you cancel your subscription prior to the end of the promotion.
We reserve the right to change, modify or vary the price, package and features of the Lyrebird Studio subscription plans that we make available from time to time. If we change or modify the price and package of such subscription plans, we will provide you with advanced notice of the applicable changes or modifications. You may discontinue to use the Lyrebird Studio Services offered under a subscription plan and request the cancellation of your subscription to such Lyrebird Studio Services at any time. We will not be liable for reimbursing you for the cancellation of your Lyrebird Studio subscription.
You may cancel your subscription by accessing your account information and following the posted instructions for cancellation of your subscription. By cancelling your membership, your account will automatically close at the end of your current billing period. Upon cancellation of your subscription, you may continue to use the applicable Lyrebird Studio Services through the remainder of your subscription term, as well as any Content that you previously created or reproduced through use of such Lyrebird Studio Services as of the date of cancellation of your subscription, provided that such use must be in compliance with these Terms.
22. International Users
In accordance with California Civil Code section 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. This Agreement constitutes the entire agreement between you and Lyrebird Studio relating to your access to and use of our Services. The failure of Lyrebird Studio to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement is for convenience only and have no legal or contractual effect. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.