Terms of Service
Last updated November 10, 2017.
Welcome to RackFX.com. This RackFX Terms of Service (the “Terms of Service ”) governs the relationship between you (the “User” or “you”) and RackFX, LLC d/b/a RackFX a Colorado limited liability company located at 1942 Broadway St. STE 314C, Boulder, CO 80302 (“RackFX,” “we” or “us” and together with you the “Parties or each individually a “Party”) RackFX connects musicians and with music studios and audio processing from all over the world (the “Services”). By signing up an account at RackFX.com you expressly accept these Terms of Service. These Terms of Service may be reviewed at any time at https://RackFX.com/terms-of-service.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, RACKFX DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY RACKFX, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
- Scope of RackFX Services. RackFX provides an interactive dashboard (the “RackFX Platform”) that enables registered users (“Upload Users”) who have uploaded recorded content (“Uploaded Content”) to connect with certain third parties who offer audio production services through connected audio production equipment. Registered users who have connected audio production equipment to the RackFX Platform are “Equipment Providers,” the services they offer are “Equipment Services” and the production equipment they have connected to the RackFX Platform is the “Studio Equipment”.All registered users (this includes Upload Users and Equipment Providers) are collectively referred to as Users. As the provider of the RackFX Platform, RackFX does not provide Studio Equipment, and plays no active role and gives no assistance in the presentation or use of the content. RackFX just acts as a passive conduit and/or host for the uploading, storage and distribution of audio content.AS A REGISTERED USER YOU ESPRESSLY ACKNOWLEDGE YOU ARE SOLELY RESPONSIBLE FOR ALL UPLOADED CONTENT AND/OR EQUIPMENT LINKED TO THE RAKFX PLATFORM. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, RACKFX DISCLAIMS ALL LIABILITY WITH RESPECT TO ALL CONTENT AND/OR EQUIPMENT UPLOADED OR LINKED TO THE AND THE ACTIVITIES OF ITS USERS WITH RESPECT THERETO.
- Registration. You must register a RackFX account (“RackFX Account”) to access and use features of the RackFX platform such as uploading Upload Content or connecting Studio Equipment. You must register your RackFX account through RackFX.com and follow all necessary steps on the registration page.
- Service Fees. We collect a service fee (the “RackFX Fees”) for our services when an Upload User agrees to use Studio Equipment for processing Upload Content. The RackFX Fees are equal to a percentage of the audio processing subtotal. The percentage fee is outlined in each Equipment Provider’s specific Service Agreement. This percentage fee is already included in the prices listed on the RackFX Platform, and we do not charge any additional fees to Upload Users.
- Automatic Billing. We allow RackFX users to add a credit card or PayPal information to their profile for automatic billing. By adding your payment details you will be billed upon on-demand processing. If your transaction is less than $10.00USD, you will be charged $10.00 with the remainder credit added to your account for future processing.
- Terms specific to Upload Users.
- Right in Uploaded Content. You hereby represent and warrant to RackFX that all Uploaded Content, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use, and (if and where relevant) to authorize RackFX to use, Uploaded Content pursuant to these Terms.
- License to RackFX for Uploaded Content. By entering into this Agreement and uploading any content into the RackFX Platform you expressly grant RackFX and to the applicable Equipment Providers a non-exclusive, fully paid, non-transferrable, revocable license to use, copy, modify and process the Uploaded Content to the extent necessary to perform under this Agreement.
- Payment and Credits. Upload Users must purchase RackFX credits (“Credits”) to pay to use the linked Studio Equipment. The cost breakdown of such credits is available through the website. Your available credits are available through your user dashboard. Your Credits do not expire, and may be used for any studio equipment available through the RackFX website.
- Use of Credits. Once you agree to have your Upload Content processed by Studio Equipment through the Platform, your credits will be automatically adjusted to reflect your purchase.
- RackFX Refunds. PAYMENTS TO RACKFX ARE NONREFUNDABLE AND THERE ARE NO REFUNDS FOR UNUSED CREDITS. We may, in our sole discretion, chose to grant a refund in unique cases, but we are under no obligation to do so.
- Refunds from Equipment Providers. Equipment Providers may provide refunds directly to Upload Users. Such refunds are in the sole discretion of the Equipment Provider and must be negotiated directly between the Upload User and the Equipment Provider. Refunds are issued by Equipment Providers are deposited as a credit directly to a user’s RackFX account.
- f. Reviews of Studio Equipment. You may leave your honest reviews and feedback of the Studio Equipment linked through the RackFX Platform. Reviews that contain profanity, inaccuracies or are intended to provoke and/or harass may by removed in RackFX’s sole discretion.
- Terms Specific to Equipment Providers.
- Accuracy. When creating a Studio Equipment listing you must provide complete and accurate information about your Studio Equipment (such as description, pictures, availability, estimated turnaround time, etc.)
- Provision of Services. You agree to process all Uploaded Content through the Studio Equipment you have described in a timely, workmanlike manner consistent with best practices in the industry.
- Studio Equipment Pricing Payment. You are solely responsible for setting a price for the use of your Studio Equipment. The RackFX Fees will be added to this price when displayed on the RackFX Platform.
- RackFX Payment Terms.
- You are entitled to payments (the “RackFX Payments”) equal to the gross amount actually paid by the Upload User(s) for use of your Studio Equipment minus the RackFX Fees defined in your Service Agreement.
- RackFX will make all RackFX Payments to Equipment Providers in US dollars every month by check or ach credit. RackFX shall pay Equipment Providers each month the RackFX Payments owed to Equipment Provider for the immediately preceding month.
- Clawback and Set-off. If RackFX makes a payment to Equipment Provider, and the underlying Upload User payment is cancelled due to a cancelled check, credit card chargeback or any other means. RackFX may reduce Equipment Provider’s next RackFX Payments in an amount equal to the cancelled payment. RackFX may also may withhold payment of any amounts due and payable under this Agreement by reason of any set-off of any claim or dispute with Equipment Provider.
- Disputes. Equipment Provider shall notify RackFX in writing of any dispute regarding any RackFX Payment, along with a reasonably detailed description of the dispute within 30 days from Referral Partner’s receipt of such payment. Equipment Provider will be deemed to have accepted all RackFX Payments for which RackFX does not receive timely notification of disputes.
- Right to Studio Equipment and License to RackFX. You acknowledge that you have all necessary rights, approvals, title and interest to use all Studio Equipment and link the Studio Equipment to the RackFX Platform. Once you link such equipment you provide RackFX a license to display and use such equipment
- License to Uploaded Content. You will receive a limited, revocable license to the Uploaded Content solely for the purpose of processing such Uploaded Content through your Studio Equipment. You acknowledge that you will not receive any right, title or interest in the Uploaded Content beyond the scope necessary to process the Uploaded Content through the Studio Equipment. You warrant that you will not copy, distribute, or sell any Uploaded Content, and you will not allow any of your employees, independent contractors or other representative to do the same. You acknowledge that you are solely responsible for maintaining the Uploaded content.
- Studio Equipment Listings. The ranking of Studio Equipment listings is determined through several factors and is in the sole discretion of RackFX.
- Compliance with Laws and Prohibited Content. By registering you agree to comply with all applicable laws related to your use of the Services. You may not use the RackFX Platform to post, promote or link to any illegal activity, storage or transmission of information, data or files that violate any United States Federal, State or City law including Intellectual Property laws. Furthermore, we reserve the right to determine what violates this policy.
- Term and Cancellation. The Agreement shall begin on the Effective Date and shall continue indefinitely until cancelled by either Party. You may cancel your RackFX account at any time through the website. To cancel, go to the “Your Account” page on our website and follow the instructions for cancellation. If you cancel your membership, your account will automatically close at the end of your current Renewal Term. We may cancel your account at any time by providing no less than 30 days’ notice of cancellation to you. If RackFX determines that you have breached any material provision in these Terms, RackFX reserves the right to terminate your account effective immediately.
- Intellectual Property.
- Trademarks.RackFX is a trademark of RackFX, LLC a Colorado limited liability company.
- Copyright in RackFX.com.The RackFX website, software and content are protected by copyright, trade secret or other intellectual property laws and treaties.
- Copyright in Uploaded Content. By uploading any content into the RackFX Platform you expressly represent that you have all necessary rights, title and interest, including copyrights, in all Uploaded Content.
- License to RackFX for Uploaded Content. By entering into this Agreement and uploading any content into the RackFX Platform you expressly grant RackFX and to the Equipment Providers a non-exclusive, fully paid, non-transferrable, revocable license to use, copy, modify and process the Uploaded Content to the extent necessary to perform under this Agreement.
- License to Studio Equipment. By linking any Studio Equipment to the RackFX Platform you expressly grant to RackFX a non-exclusive, fully paid, non-transferrable, revocable license to display, advertise and offer the services of your Studio Equipment.
- Claims of Copyright Infringement. RackFX does not review content submitted to the platform for potential copyright infringement. If you believe your work has been copied, reproduced, distributed or used in a way that constitutes a copyright infringement or are aware of any infringing material available through the RackFX service, please notify us through our DMCA policy located at www.RackFX.com/copyright-policy/.
- Authorization and Limited License to Access RackFX Software Platform. During the Term, you will be granted a revocable, non-transferable, non-sublicenseable, non-exclusive limited license to access the RackFX software platform. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in RackFX, the platform, software, data, applications, methods of doing business or any other content provided through RackFX whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the RackFX Platform and Services, are and will remain with RackFX. You may only access RackFX via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other Person to, access or use the RackFX Platform or Services except as expressly permitted by this Agreement.For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:(a) copy, modify or create derivative works or improvements of RackFX Platform or Services;(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the RackFX Platform or Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service.(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;(d) bypass or breach any security device or protection used by the RackFX Platform or Services or access or use the RackFX Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the services, including any copy thereof;
(h) access or use the RackFX Platform or Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the RackFX Platform or Services for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage.
RackFX may terminate the foregoing license and your account if it determines, in its sole discretion, that you have violated the provisions of this license.
- Additional Representations of all Users. By agreeing to these Terms of Service you personally represent that (a) you are at least 18 years of age; (b) you have the authority to claim the associated business listing; (c) the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the User; (d) the execution of this Agreement by the User has been authorized by all necessary corporate actions if applicable; and (e) upon execution of the Service Agreement, this Agreement constitutes a legal, valid and binding obligation of User, enforceable against User in accordance with its terms. User further expressly represents that User has the right to use all intellectual property, including but not limited to copyrighted materials and trademarks, supplied to RackFX for use in conjunction with the services.
- DISCLAIMER OF WARRANTIES. RACKFX PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, OUR SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RACKFX DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, RACKFX MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
- LIMITATIONS OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY LAW, RACKFX SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY USER OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO RACKFX FOR THE SERVICES SOLD HEREUNDER.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
- Indemnification. You agree to indemnify, defend and hold RackFX harmless from any and all liability, claims, damages and settlements due to any third-party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to User’s (a) illegal or unauthorized use of the Services, (b) breach of any third party intellectual property rights, including, but not limited to, copyright, trademark or patent rights, or (c) noncompliance or breach of any of these Terms or Service by User or any third party (authorized, permitted or enabled by User).
- Dispute Resolution.
- Good Faith and Cooperation.Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes or controversies, and allow the other Party no less than 30 days to cure the issue and/or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships the other.
- Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith,the Parties hereby agree to resolve any and all disputes, controversies or claims arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Such arbitration shall be administered by the American Arbitration Association (AAA), and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Exceptions to Agreement to Arbitrate. Either Party may assert claims, if they qualify, in small claims court in Larimer County, Colorado. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Arbitration Agreement is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts of the state of Colorado. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
- Costs and Attorney’s Fees:Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.
- Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, USER ACKNOWLEDGES AND AGRESS THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. USER FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT USER WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
- Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Colorado without giving effect to conflict of laws principles.
- Entire Agreement. These Terms or Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and executed by the Parties.
- Waiver. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.
- Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
- Severability. If any provision of this Agreement or the application thereof is held invalid, illegal or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
- Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon notice to the other Party.
- Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created.
- Survival.The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, User remains liable for any amounts due to RackFX as of the effective date of termination.
- Taxes. The fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). User is responsible for paying any taxes associated with the purchase of the services hereunder..
- Headings.Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.
- Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
- Defined Terms. Capitalized terms are defined in the Section in which they first appear.