DRUM TECHNOLOGIES, INC.
TERMS OF SERVICE
Last Updated: September 3, 2019
Welcome to Drum!
Drum Technologies, Inc. (“Drum,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.drum.io (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Drum Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Drum Platform user interface, in an email notification, or through other reasonable means, no earlier than fourteen (14) days after they are posted. Any such changes will become effective immediately and your continued use of the Drum Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DRUM ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1. Access and Use of the Drum Platform
Drum Platform: The Drum Platform provides a marketplace where businesses seeking an independent sales or work force or new sales or engagement channels (“Business”) can leverage the services of individual professionals (“Drummer(s)”) who can help sell, promote, and market various products, services, or other engagements offered by the Businesses (“Offers”) to third-party customers or partners (“Buyer”). Businesses, Drummers, and Buyers are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Drum Platform.
Scope of Drum Services: Drum provides the Drum Platform to connect Businesses and Drummers. Drum is not responsible for the ultimate sale of any products and services to Buyers or engagement with Buyers. As the provider of the Drum Platform, Drum does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Offers. Businesses alone are responsible for the Offers. Drummers should always exercise due diligence and care when deciding whether to promote a particular Offer and communicate and interact with other Users, whether in person or online. Drum is not and does not become a party to or other participant in any contractual relationship between Users, and Drum will not mediate, arbitrate, or otherwise be involved with any disputes between Users unless Drum determines otherwise in its own discretion. Drum is not acting as an agent in any capacity for any User, nor is Drum responsible for the actions or omissions of any User, or your interactions with other users through the Drum Platform. Drum will have no liability or responsibility with respect thereto.
User Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Drum of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Drum Platform. Drum will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Drum Platform: Drum reserves the right to modify or discontinue, temporarily or permanently, the Drum Platform (or any part thereof) with or without notice. You agree that Drum will not be liable to you or to any third party for any modification, suspension or discontinuance of the Drum Platform.
General Practices Regarding Use and Storage: You acknowledge that Drum may establish general practices and limits concerning use of the Drum Platform, including without limitation the maximum period of time that data or other content will be retained by the Drum Platform and the maximum storage space that will be allotted on Drum’s servers on your behalf. You agree that Drum has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Drum Platform. You acknowledge that Drum reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Drum reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Drum Platform includes certain services that are available via a mobile device, including (i) the ability to upload content to the Drum Platform via a mobile device, (ii) the ability to browse the Drum Platform from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Drum Platform through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
By using the Services, you consent to receive information from us via SMS and/or MMS messages sent through an automated telephone dialing system (“Text Service”), even if you have opted in to the National Do Not Call List, any state Do not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message as instructed to complete your registration and confirm enrollment in the Text Service. You do not have to participate in the Text Service in order to use the Services. In the event you no longer want to participate in the Text Service, you agree to notify us directly. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Company account information to ensure that your messages are not sent to the person that acquires your old number.
There is no additional charge for the Text Service, but your mobile carrier’s standard message and data rates apply to any messages you send or receive through the Text Service, including confirmations and subsequent texts. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any SMS or MMS messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan.
As described in the Text Service enrollment and welcome messages, including messages sent to a shortcode associated with the Text Service or by reply to any message you receive from us, you may text “STOP” to cancel or “HELP” for customer support information. If you choose to cancel your Text Service, you agree to receive a final text message from the Text Service confirming your cancellation.
You can also invite others to use the Services through the Text Service by providing the numbers of those you want to invite or by selecting the individuals you want to invite from your contacts list (if you have uploaded one). By asking us to invite others to use the Services, you represent to us that those you invite consent to receive the automated invitation messages and that you are authorized to convey that consent to us.
Relationship with Drummers and Businesses: If you choose to use the Drum Platform as a Drummer or Business, your relationship with Drum is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Drum for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Drum. Drum does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms of Service specifically, including in connection with your Offer or promotion of any Offers or any other activity on the Drum Platform. You acknowledge and agree that you have complete discretion whether to list Offers, promote Offers, or otherwise engage in other business or employment activities.
2. Terms Specific for Businesses
When creating a Offer through the Drum Platform you must (i) provide complete and accurate information about your Offer (which may include, but is not limited to, a sufficient description of the Offer offered to Buyers, pricing information, redemption structures, payment details, loyalty offers, expiration dates, and other information related to your Offer), (ii) disclose any deficiencies, restrictions (such as any third-party or event rules) and requirements that apply (such as any minimum age, proficiency or fitness requirements for any Offer) and (iii) provide any other pertinent information requested by Drum. You are responsible for keeping your Offer information up-to-date at all times. Your Offer, and any terms and conditions included in your Offer, must not conflict with these Terms of Service or any other relevant agreement to which you are a party.
Once you have created a Offer, Drummers may decide to initiate the process of promoting, marketing, and otherwise selling your Offer. You can decide how a Drummer will earn a commission on the Drum Platform. Drummers may earn a minimum commission when a Drummer promotes your Offer to a Buyer, or Drummers can earn a performance-based commission that pays out when a Buyer actually purchases or engages with the Drummer promoted Offer on the Drum Platform (“Commission”). The Commission fee for your Offer will be automatically deducted from the amount you have agreed to pay Drum, such Commission terms will be stated clearly in the Drum Platform and will include any applicable taxes.
You represent and warrant that you have all rights necessary to upload, provide, and display the User Content (as defined below) in connection with your Offer, including all images, written descriptions and other content, and that neither the User Content nor your uploading, posting, publishing, or submission of the User Content, nor Drum’s use of the User Content will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy.
Furthermore, you represent and warrant that (i) you have read the terms of any agreements you have entered with any third parties in relation to your Offer, such as any event space, vendor, supplier, or other relevant third parties, and (ii) any Offer you post and a Drummer’s promotion and Buyer’s use or participation in the product or service offered in such Offer will not breach any such agreements. As a Business, you are responsible for your own acts and omissions and those of any individuals who engage with your Offers.
3. Terms Specific for Drummers
Drummers are the hub of the Drum Platform and can earn by promoting and selling Offers on the Drum Platform, or by referring new Users to Drum.
Promoting Offers: Drummers can make Commission by promoting and selling Offers. Details of the Commission are listed at drum.io/earnings, which Drum may change from time to time. Once you have finished the sign-up process as a Drummer on the Drum Platform, Drum will provide various potential Offers that you may choose to promote. When you find an Offer on the Drum Platform that you would like to promote, you will be provided with Offer information, which may include, but is not limited to the Commission structure, Offer-related terms and conditions, images and content, and other pertinent information related to the Offer. The Drum Platform will occasionally offer promotions for certain Offers that may include, but is not limited to higher percentages on Commissions or cash bonuses on top of Commissions (“Offer Promotions”). Offer Promotions are valid and redeemable only while live on the Drum Platform or otherwise during timeframes posted on the Drum Platform. Drummers can make Commissions from Offers by sharing the Offer offers to Buyers through various means that include, but are not limited to, transferring the Offer via a QR code, User ID, email, text, html link or otherwise, allowing Buyers to redeem Offer on a mobile application, promoting the Offer on social media, or through other means or channels either in person or digitally. Commissions can be earned through sharing the Offer or through actually Buyer purchase of Offers on the Drum Platform.
Drummers are prohibited from promoting Offers by:
If a Drummer decides to promote an Offer on any third party platform (including, but not limited to, Facebook, Twitter, Instagram), in order to maintain the integrity of the advertisement, we require that contributors comply with applicable laws and regulations when submitting the advertisement, including without limitation the FTC Endorsement Guidelines (for more information, please visit: http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking). Without limiting the generality of the foregoing, we require that contributors (a) must be truthful and not misleading in your advertisement, (b) disclose whether you believe your experience with the applicable product or service does not reflect what an average consumer would experience, and (c) disclose any connection between you and the applicable brand that would reasonably affect how other people evaluate the product or service, such as including a description or hashtag that identifies the advertisement as affiliated with Drum or includes an identification such as “#ad” or “#promotion.”
As a Drummer, you represent and warrant that you will not decline a Buyer, impose any different terms or conditions on a Buyer, or perform any action related to the Offer that discourages or indicates a preference for or against any Buyer, in each case with respect to race, color, ethnicity, national origin, religion, sexual orientation, gender identity, marital status, or any actual or perceived disability. You agree that Drum may suspend and/or terminate your account and any associated Offers in the event we discover you have violated the foregoing.
Bonuses: Drummers can also earn bonuses in a variety of ways on the Drum Platform, including through referring new Users to the Drum Platform. Drummers may refer new Users in a variety of ways, including through a personal referral link. When a new User signs up and opens a new Drum account through a Drummer, the referring Drummer will receive a Bonus. The details of the Bonus, including the fees to be earned and the various details of the Bonus structure, are set forth at drum.io/earnings, and each Drummer can track their Bonus their Drummer account. Every time a Drummer earns a certain threshold of Bonus, Drum shall pay Drummer the Bonuses via the payment methods set forth herein.
Drummers are prohibited from signing up new Users by:
4. Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“User Content”) that you upload, post, publish or display (hereinafter, “Upload”) or email or otherwise use via the Drum Platform, and represent that you have all necessary rights to such content. The following are examples of the kind of Content and/or use that is illegal or prohibited by Drum. Drum reserves the right to investigate and take appropriate legal action against anyone who, in Drum’s sole discretion, violates this provision, including without limitation, removing the offending Content from the Drum Platform, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Drum Platform to:
User Disputes: You agree that you are solely responsible for your interactions with any other User in connection with the Drum Platform and Drum will have no liability or responsibility with respect thereto. While we may help facilitate the resolution of disputes, Drum has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Offers, (ii) the truth or accuracy of any Offer descriptions or other User Content, or (iii) the performance or conduct of any User or third party. Drum does not endorse any User or Offer. Drum reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Drum Platform.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Drum Platform and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Drum Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Drum Platform, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Drum Platform, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Drum Platform, use of the Drum Platform, or access to the Drum Platform. The Drum Platform is for your personal use.
5. Fees and Payment
6. Third Party Distribution Channels
Drum offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of the Drum Platform, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
756 W Peachtree St, 4th Floor, Atlanta, GA 30308
Drum and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
7. Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Drum Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Drum, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Drum Platform or the Platform Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Drum Platform. In connection with your use of the Drum Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Drum from accessing the Drum Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Drum Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Drum Platform or distributed in connection therewith are the property of Drum, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Drum.
The Drum name and logos are trademarks and service marks of Drum (collectively the “Drum Trademarks”). Other company, product, and service names and logos used and displayed via the Drum Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Drum. Nothing in this Terms of Service or the Drum Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Drum Trademarks displayed on the Drum Platform, without our prior written permission in each instance. All goodwill generated from the use of Drum Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Drum be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Drum does not pre-screen content, but that Drum and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Drum Platform. Without limiting the foregoing, Drum and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Drum, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through The Drum Platform: With respect to the content or other materials you upload through the Drum Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Drum and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Drum Platform or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Drum Platform (“Submissions”), provided by you to Drum are non-confidential and Drum will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Drum may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Drum, its users and the public. You understand that the technical processing and transmission of the Drum Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Drum respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Drum of your infringement claim in accordance with the procedure set forth below.
Drum will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Drum’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
Drum Legal Department, 756 W Peachtree St, 4th Floor, Atlanta, GA 30308
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Drum will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Drum has adopted a policy of terminating, in appropriate circumstances and at Drum’s sole discretion, users who are deemed to be repeat infringers. Drum may also at its sole discretion limit access to the Drum Platform and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. Third Party Websites
The Drum Platform may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Drum has no control over such sites and resources and Drum is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Drum will 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 content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Drum Platform are between you and the third party, and you agree that Drum is not liable for any loss or claim that you may have against any such third party.
9. Social Networking Services
In addition, Drum is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Drum is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Drum enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
10. Indemnity and Release
You agree to release, indemnify and hold Drum and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Drum Platform, any User Content, your connection to the Drum Platform, your interaction with a User on the Drum Platform regardless of whether such interaction resulted from the Users’ use of the Drum Platform, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 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 must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
11. Disclaimer of Warranties
YOUR USE OF THE DRUM PLATFORM IS AT YOUR SOLE RISK. THE DRUM PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DRUM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
DRUM MAKES NO WARRANTY THAT (I) THE DRUM PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE DRUM PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DRUM PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE DRUM PLATFORM WILL MEET YOUR EXPECTATIONS.
12. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT DRUM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE DRUM PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE DRUM PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DRUM PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE DRUM PLATFORM. IN NO EVENT WILL DRUM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID DRUM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE DRUM PLATFORM OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE DRUM PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
13. Dispute Resolution By Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
A. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Drum, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Drum Platform, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Drum are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
B. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND DRUM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DRUM AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
C. Pre-Arbitration Dispute Resolution
Drum is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Drum should be sent to 756 W Peachtree St, 4th Floor, Atlanta, GA 30308 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Drum and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Drum may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Drum or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Drum is entitled.
D. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Drum and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Drum agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
E. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Drum will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Drum will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Drum will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
H. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Drum agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Drum Platform, you may reject any such change by sending Drum written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Drum, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Drum Platform and remove and discard any content within the Drum Platform, for any reason, including, without limitation, for lack of use or if Drum believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Drum Platform, may be referred to appropriate law enforcement authorities. Drum may also in its sole discretion and at any time discontinue providing the Drum Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Drum Platform under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Drum may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Drum Platform. Further, you agree that Drum will not be liable to you or any third party for any termination of your access to the Drum Platform.
These Terms of Service constitute the entire agreement between you and Drum and govern your use of the Drum Platform, superseding any prior agreements between you and Drum with respect to the Drum Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Georgia without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Drum agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Fulton County, GA. The failure of Drum to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Drum Platform or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Drum, but Drum may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Drum Platform may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Drum Platform.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Drum Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Drum Technologies, Inc.,
756 W Peachtree St, 4th Floor, Atlanta, GA 30308
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Drum Platform.