Terms of Service
December 17, 2018
These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online products and services, such as the Tully app (collectively, our “Services”) provided by Vertical Craft, Inc. (“Vertical Craft” or “we”).
Whether you are an artist, engineer and/or other user of some or all of our Services, these Terms apply to your use of our Services in whatever capacity.
If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 15, do not access or use our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
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 these Terms. 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 these Terms 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 these Terms.
User Accounts and Account Security
You may need to register for an account or use your credentials (e.g., username and password) from a third-party social media platform to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.
The Tully app was created to enable artists to play, write, and record song ideas all within one application. Users can instantly access to audio files, lyric sheets, and recording ideas because artists’ files are organized and synced into the cloud.
Artists and Engineers
Artists can share their files, via the Tully app, with engineers in order to enable engineers to mix, modify and otherwise use files.
Each artist and engineer who shares files and other content via the Tully app acknowledges and agrees that the terms and conditions, if any, applicable to such sharing (and all related matters between artists and engineers, including, but not limited to, the mixing, modifying, and using of files) are solely between each such artist and engineer, and not with Vertical Craft. Artists and engineers, not Vertical Craft, are responsible for monitoring and enforcing the terms and conditions (if any) applicable to all matters relating to the sharing, modify, mixing, and using of files between such artists and engineers. Vertical Craft will not be liable for any actual or alleged breach of the terms and conditions, if any, governing all matters relating to the sharing, modify, mixing, and using of files between such artists and engineers (or any damages arising from or related to such actual or alleged breach).
Each artist and engineer (not Vertical Craft) is responsible for (a) all claims, (b) all intellectual property rights, rights of privacy, rights of publicity, and other rights issues, (c) all data losses, and (d) all other matters relating to the sharing of files and other content between artists and engineers. Vertical Craft reserves the right, but does not have the obligation, to review, screen, or monitor the interactions between artists and engineers via the Tully app at any time and for any reason without notice.
Subscriptions and Related Fees
Certain of our Services are accessible for a fee. If you want to access any of Services that we offer for a fee, you must select a Service package. Each Service package outlines (a) the specific Services provided, (b) the fees applicable to such Services (“Subscription Fees”), (c) the payment terms applicable to such Services, and (d) the period such Services will be provided (“Subscription Period”). All Subscription Fees must be paid (a) in U.S. Dollars, and (b) by payment card via an authorized Vertical Craft payment processor.
When you select a Service package, (a) you authorize Vertical Craft or its authorized payment processor to make automatic recurring charges for the Subscription Fees to the payment card number you provide via the Services to Vertical Craft (or its authorized payment processor) on an annual or monthly basis (as applicable) for the duration of the Subscription Period, (b) you represent and warrant that you are authorized to use and have fees charged to the payment card number you provide via the Services to Vertical Craft (or its authorized payment processor), and you understand that you may withdraw this consent by emailing Vertical Craft at email@example.com Cancellations will be effective immediately, but no refunds are offered.
IMPORTANT — Subscription Periods automatically renew. If you would like to cancel a Service package, please contact Vertical Craft at firstname.lastname@example.org. No refunds offered. Vertical Craft, at its sole discretion, may modify its fees with notice to you, but changes will only be effective as of the directly subsequent Subscription Period.
In no event may you use any information obtained via any of our Services or Vertical Craft for any purpose other than expressly authorized in these Terms. For example, you may not use any artist’s or any engineer’s email addresses or other contract information to solicit any users of our Services to leave our Services.
Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, audio files, music production files, lyrics, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Vertical Craft.
You grant Vertical Craft a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in order to provide the Services. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) will be visible to other individuals using the Services or other individuals with whom you have chosen to share such User Content.
You may not create, post, store or share any User Content that violates these Terms 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.
Prohibited Conduct and 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:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s account without authorization from that user and Vertical Craft;
Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
Bypass or ignore instructions contained in our robots.txt file, that controls automated access to portions of our Services; or
Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only post or otherwise share User Content that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
Impersonates, or misrepresents your affiliation with, any person or entity;
Contains any unsolicited promotions, political campaigning, advertising or solicitations;
Contains any private or personal information of a third party without such third party’s consent;
Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Vertical Craft or others to any harm or liability of any type.
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.
Copyright and Limited License
Our Services and all content and other materials contained in the Services including, without limitation, all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Vertical Craft Content”) are the proprietary property of Vertical Craft or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-transferable, non-exclusive, and non-sub licensable right and license to access and use our Services for your informational, commercial and personal use only. Such license is subject to these Terms and does not include: (a) any resale of our Services or the Vertical Craft Content in the Services; (b) the distribution, public performance or public display of any Vertical Craft Content; (c) modifying or otherwise making any derivative uses of our Services or the Vertical Craft Content, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of our Services, the Vertical Craft Content or any information contained therein, except as expressly permitted on the Services; or (f) any use of the Services or the Vertical Craft Content other than for its intended purpose. Any use of our Services or the Vertical Craft Content other than as specifically authorized in these Terms, without the prior written permission of Vertical Craft, is strictly prohibited and will terminate the license granted in these Terms. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in these Terms, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
VERTICAL CRAFT, TULLY and any other name, slogan or logos contained in our Services are trademarks of Vertical Craft, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Vertical Craft or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “VERTICAL CRAFT”, “TULLY” or any other name, trademark or product or service name of Vertical Craft without our prior written permission. In addition, the look and feel of our Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Vertical Craft and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company or organization names or logos mentioned in our Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply our endorsement, sponsorship or recommendation.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Vertical Craft or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of Vertical Craft. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Vertical Craft’s Designated Agent as follows:
Vertical Craft, Inc
1070 Montgomery Rd Unit #255
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Vertical Craft and our officers, directors, agents, partners and employees (individually and collectively, the “Vertical Craft 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 these Terms; (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 Vertical Craft Parties of any third party Claims, cooperate with Vertical Craft 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 Vertical Craft 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 Vertical Craft or the other Vertical Craft 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.
We do not control, endorse or take responsibility for any claims, intellectual property rights, rights of privacy, rights of publicity, and other rights issues, all data losses, or any other matters relating to the sharing of files and other content amongst artists, engineers, and other individuals or entities.
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, Vertical Craft does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Vertical Craft 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.
Limitation of Liability
Vertical Craft and the other Vertical Craft 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 Vertical Craft or the other Vertical Craft Parties have been advised of the possibility of such damages.
The total liability of Vertical Craft and the other Vertical Craft Parties, for any claim arising out of or relating to these Terms 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 Vertical Craft or the other Vertical Craft 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 Vertical Craft and the other Vertical Craft 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.
Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Vertical Craft and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Vertical Craft seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Vertical Craft seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Vertical Craft waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Orange County, Florida in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Vertical Craft agree that any dispute arising out of or related to these Terms or our Services is personal to you and Vertical Craft and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Vertical Craft agree that these Terms affect interstate commerce and that the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Vertical Craft agree that for any arbitration you initiate, you will pay the filing fee and Vertical Craft will pay the remaining JAMS fees and costs. For any arbitration initiated by Vertical Craft, Vertical Craft will pay all JAMS fees and costs. You and Vertical Craft agree that the state or federal courts of the State of Florida and the United States sitting in Orange County, Florida have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND VERTICAL CRAFT WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 15 by emailing us at email@example.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 16.
Governing Law and Venue
THESE TERMS AND YOUR ACCESS TO AND USE OF OUR SERVICES WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF DELAWARE WITHOUT REGARD TO CONFLICT OF LAW RULES OR PRINCIPLES (WHETHER OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. 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 FLORIDA AND THE UNITED STATES, RESPECTIVELY, SITTING IN ORANGE COUNTY, FLORIDA.
By creating a Vertical Craft account, you also consent to receive electronic communications from Vertical Craft (e.g., via email or by posting notices on our Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. 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.
Changes to these Terms
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
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 these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
These Terms constitute the entire agreement between you and Vertical Craft relating to your access to and use of our Services. The failure of Vertical Craft to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
Additional Terms Applicable to iOS Devices
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”).
Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple, and Vertical Craft, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
Scope of License. The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support. You and Vertical Craft acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Vertical Craft. However, you understand and agree that in accordance with these Terms, Vertical Craft has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
Product Claims. You and Vertical Craft acknowledge that as between Apple and Vertical Craft, Vertical Craft, not Apple, is responsible for addressing any claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Vertical Craft, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to:
Vertical Craft, Inc
1070 Montgomery Rd Unit #255
Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the Services.
Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).