1.1. Governing Agreement

The terms of this agreement (“Terms of Service” or “Terms”) govern the relationship between you and THX Ltd. (hereinafter “THX” or “Us” or “We”) regarding your use of THX’s THX tuneup™ mobile application and related services (the “Service”). In this agreement, “THX” means THX Ltd. located at 1600 Los Gamos Drive, Suite 130, San Rafael, California 94903.
This Terms of Service is concluded between you and THX only, and not with Apple Inc., and THX, not Apple Inc., is solely responsible for the Service and the content thereof.

1.2. Privacy Policy

Use of the Service is also governed by THX’s Privacy Policy, which can be found at http://www.thx.com/company-resources/thx-privacy-policy/ and is incorporated herein by reference. Your privacy is important to Us. We designed THX’s Privacy Policy to make important disclosures about how We collect and use your content and information and how you can use the Service to share such information with others. We encourage you to read the THX Privacy Policy carefully and use it to make informed decisions.

By creating an account or accessing or using the Service you accept and agree to be bound by these Terms of Service and consent to the collection, use and storage of your information as outlined in THX’s Privacy Policy.

1.3. Updates to the Terms of Service

THX reserves the right, at our discretion, to change, modify, add or remove portions of these Terms of Service at any time by posting the amended Terms on or within the Service. You may also be given additional notice, such as an e-mail message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective 30 days after they are initially posted. THX may also revise other policies, codes or rules at any time, and the new versions will be available at www.THX.com or in the Service. No amendment to the Terms of Service shall apply to any dispute of which THX had actual notice before the date of the amendment. Changes to the Terms of Service will always be prospective, not retroactive.

This agreement may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.

If at any point you do not agree to any portion of the then-current version of our Terms of Service relating to your use of the Service, your license to use the Service shall immediately terminate and you must immediately stop using the Service.

To the extent the Terms of Service conflict with any other THX terms, policy, rules or codes of conduct, the terms contained in these Terms of Service shall govern.

1.4. Grant of a Limited License to Use the Service

Subject to your agreement and continuing compliance with these Terms of Service and any other relevant THX policies, THX grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in Sections 1.7 to access and use the Service on an iOS Product that you own or control solely for your own non-commercial entertainment purposes and as permitted by the Usage Rules set forth in the Apple Inc. App Store Terms of Service. You agree not to use the Service for any other purpose.

1.5. Accessing the Service

By accessing or using the Service, you accept and agree to these Terms of Service. You warrant that you are not prohibited from receiving products of U.S. origin, including services or software.

You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.

1.6. Account Information

When downloading or using Service, you may be requested or required to provide THX with certain personal information, which may include your name, zip code, e-mail address, home theater equipment and payment information. This information will be held and used in accordance with THX’s Privacy Policy and relevant notices, if any, provided at the point of information collection or use. You agree that you will supply accurate and complete information to THX.

1.7. License Limitations

Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE IS A VIOLATION OF THESE TERMS AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.

You agree that you will not, under any circumstances:

• a. Create an Account or access the Service if you are under the age of 18;
• b. Use the Service if you are located in a country embargoed by the United States or that has been designated by the U.S. Government as a “terrorist supporting” country;
• c. Use the Service if you are on the U.S. Treasury Department’s list of Specially Designated Nationals or any other U.S. Government list of prohibited or restricted parties;
• d. Use the Service for commercial purposes;
• e. Use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone;
• f. Use your Account to engage in any illegal conduct;
• g. Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without THX’s written permission; and
• h. Access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without THX’s permission.

You agree that you will not, under any circumstances:

• i. Engage in any act that THX deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms or our policies;
• j. Make improper use of THX’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel; or
• k. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
• l. Without THX’s express written consent, modify or cause to be modified any files that are a part of the Service;
• m. Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service; or
• n. Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by THX, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;

OFFENSIVE OR INFRINGING CONTENT – You agree that you will not, under any circumstances:

• o. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including THX employees, including THX’s customer service representatives; or
• p. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a THX employee;

COMMERCIAL ACTIVITY – You agree that you will not, under any circumstances:

• q. Without THX’s express written consent, use the Service or any part thereof for any commercial purpose;
• r. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;

UNAUTHORIZED USE OR CONNECTION TO THE SERVICE – You agree that you will not, under any circumstances:

• s. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
• t. Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service. THX may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
• u. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device;
• v. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
• w. Bypass any robot exclusion headers or other measures We employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
• x. Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (2) any connection using programs, tools, or software not expressly approved by THX;
• y. Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by THX; or
• z. Copy, modify or distribute rights or content or THX’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;

COLLECTION AND PUBLICATION OF PERSONAL INFORMATION – You agree that you will not, under any circumstances:

• aa. Solicit or attempt to solicit personal information from other users of the Service;
• bb. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
• cc. upload or transmit or attempt to upload or transmit, without THX’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).

1.8. Suspension and Termination of Account and Service

WITHOUT LIMITING ANY OTHER REMEDIES, THX MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR THX SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU.

WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

THX reserves the right to stop offering and/or supporting the Service or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, THX shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.

Apple Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.

1.9. Ownership

1.9.1. Patterns, Photographs and Service

The Service (including without limitation any computer code, artwork, audio-visual effects, server software, patterns, trailers, audio files, photographs) are copyrighted works and/or trademarks owned or licensed by THX Ltd. THX reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.

1.9.2. Accounts

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THX.
THX owns, has licensed, or otherwise has rights to use all of the content that appears in the Service.

2. DISCLOSURE

Your information, and the contents of all of your online communications (including without limitation, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of THX, including to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.

3. PAYMENT OF FEES

You agree to pay all fees and applicable taxes incurred by you to download and use the Service. YOU ACKNOWLEDGE THAT THX IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.

4. THIRD PARTY TERMS OF AGREEMENT

4.1. Third Party Beneficiary.

You acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of the Terms of Service, and that, upon your acceptance of these Terms of Service, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.

4.2. Third Party Notices.

Portions of the Services may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for such third party software and other copyrighted material, and your use of such material is governed by their respective terms and you must comply with applicable third party terms of agreement when using the Service.

4.3. Third Party Advertisements

You understand that the Service may feature advertisements from THX or third parties.

4.4. Links to Third Party Sites and Dealings With Advertisers

THX may provide links on the Service to third party websites or vendors who may offer goods or services for sale. Any charges or obligations you incur in your dealings with these third parties are your responsibility. THX makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of THX and may collect data or solicit personal information from you. THX is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by THX of these linked sites.

5. UPDATES TO THE SERVICE

You understand that the Service is an evolving one. THX may require that you accept updates to the Service you have installed on your computer or mobile device. You acknowledge and agree that THX may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service.

6. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION

6.1. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). IN THE EVENT OF ANY FAILURE OF THE SERVICE TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE INC., AND APPLE INC. WILL REFUND THE PURCHASE PRICE FOR THE SERVICE TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE INC. WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER THX NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “THX PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

6.2. LIMITATIONS; WAIVERS OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE THX PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.

YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE THX PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE THX PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE THX PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID THX FOR THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID THX ANY AMOUNTS FOR THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THX IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.

IN THE EVENT OF ANY THIRD PARTY CLAIM THAT THE SERVICE OR YOUR USE OF THE SERVICE INFRINGES THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, THX, NOT APPLE INC., WILL BE SOLELY RESPONSIBLE FOR THE INVESTIGATION, DEFENSE, SETTLEMENT AND DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY INFRINGEMENT CLAIM. THX, NOT APPLE INC., IS RESPONSIBLE FOR ADDRESSING CLAIMS BY YOU OR ANY THIRD PARTY RELATING TO THE SERVICE OR YOUR POSSESSION AND/OR USE OF THAT SERVICE, INCLUDING BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SERVICE FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.

6.3. Indemnification

You agree to indemnify, save, and hold THX, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. THX reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify THX, and you agree to cooperate with THX’s defense of these claims. THX will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.

7. DISPUTE RESOLUTION

7.1. General

If a dispute arises between you and THX, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and THX agree that We will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a “Claim”) in accordance with one of the subsections below or as We and you otherwise agree in writing. Before resorting to these alternatives, We strongly encourage you to first contact Us directly to seek a resolution by going to Customer Support. THX Customer Support can be reached at tuneupsupport@thx.com and (415) 492-3961 with any questions, complaints, or claims with respect to the Service. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

7.2. Law and Forum for Legal Disputes

This Agreement and any dispute arising out of or related to it or the Service shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against THX must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.

8. GENERAL PROVISIONS

8.1. Assignment

THX may assign or delegate these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service without THX’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

8.2. Supplemental Policies

THX may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.

8.3. Entire Agreement

These Terms of Service, any supplemental policies and any documents expressly incorporated by reference herein, contain the entire understanding of you and THX, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Us with respect to the Service.

8.4. Severability

You and THX agree that if any portion of these Terms of Service is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.

8.5. Language of the Terms of Service

If We provide you with a translation of the English language version of these Terms of Service or any other policy (collectively “THX Policies”), then you agree that the translation is provided for informational purposes only and does not modify the English language version of the THX Policies.
In the event of a conflict between a translation of the THX Policies and the English version, the English version of the THX Policies will control.

8.6. No Waiver

The failure of THX to require or enforce strict performance by you of any provision of these Terms of Service or failure to exercise any right under them shall not be construed as a waiver or relinquishment of THX’s right to assert or rely upon any such provision or right in that or any other instance.

The express waiver by THX of any provision, condition, or requirement of these Terms of Service shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by THX shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of THX.

8.7. Notices

We may notify you via postings on www.THX.com, and via e-mail or any other communications means to contact information you provide to Us. All notices given by you or required from you under these Terms of Service shall be in writing and addressed to: THX Ltd., Attn: LEGAL DEPARTMENT, 1600 Los Gamos Drive, Suite 130, San Rafael, CA 94903.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.

8.8. Equitable Remedies

You acknowledge that the rights granted and obligations made under these Terms of Service to THX are of a unique and irreplaceable nature, the loss of which shall irreparably harm THX and which cannot be replaced by monetary damages alone. Accordingly, THX shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.

You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 6.2 (if any).

8.9. Force Majeure

THX shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of THX, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond THX’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

9. ATTRIBUTIONS

THX, THX tune-up, the THX logo and the THX Deep Note audio logo are trademarks of THX Ltd. All rights reserved.

Effective date of revision: December 13, 2012

©2012 THX Ltd.

These Terms and Conditions of Use (the “Terms of Use”) apply to the THX Web site located at www.thx.com, and all associated sites linked to www.thx.com by THX Ltd. (“THX”) (collectively, the “Site”). By using or visiting the Site, you agree to these Terms of Use. If you do not agree to the Terms of Use, do not use the Site. In addition, when using particular services available on this Site, you will be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms of Use. THX reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site after the posting of changes to these Terms of Use will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, THX grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.

Please note that additional and/or different terms of use may apply to services provided through one or more business associates of THX, and you should refer to those before using such services.

Content and Ownership

This Site is owned and operated by THX. All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, characters, sounds, music, trailers, artwork, stories, information and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to THX, and is protected by trade dress, copyright, patent and/or trademark laws, and various other intellectual property rights and unfair competition laws. Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, modified, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without THX’s express prior written consent. Any use of any of the materials on this Site other than for private, non-commercial viewing purposes is strictly prohibited. The sale, auction, lease, loan, gift, trade or barter, or use of any of the text, graphics, photographs, audio and/or video material or stills from audiovisual material or any other materials contained herein, for any other purpose, in any form, media or technology now known or hereafter developed, including the use of any of the aforementioned materials on any other Web site or networked computer environment, without express prior written consent from THX, is expressly prohibited. The creation of derivative works based on the materials contained herein including, but not limited to, products, services, fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards and greeting cards and unlicensed merchandise (whether sold, bartered or given away) is expressly prohibited. You may use information on THX products and services (such as brochures, white papers, and similar materials) purposely made available by THX for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.

Privacy

THX’s Privacy Policy applies to use of this Site, and its terms are made a part of these Terms of Use by this reference. To view THX’s Privacy Policy, click here. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others.

Links to Other Sites

This Site may include links to other independent third-party Web sites solely as a convenience to visitors, including the THX Online Store. Such linked sites are not under THX’s control, and THX is not responsible for and does not endorse any such linked sites or the information, material, products, content, or services contained in such linked sites or other sites accessible through those linked sites. Furthermore, THX makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.

Use of Site and User Postings

In connection with your use of any of the chat areas, bulletin boards, e-mail or other public communication elements of this Site, you may not upload to, distribute through, or otherwise publish through this Site any content which is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise give rise to liability, or violates any law. Your use of this Site must only be in a noncommercial manner. You cannot, without THX’s express approval, distribute or otherwise publish any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. You may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of THX or others.

This Site may enable visitors to post their reviews, remarks, comments and other content. You may post such content so long as it is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of posted content. We reserve the right (but not the obligation) to remove or edit such content, although we do not regularly review posted content. If you post any such content, you grant THX and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such content throughout the world in any media. You also grant THX and its affiliates the right to use the name that you submit with any such content. You represent and warrant that you own or otherwise control all of the rights to any content that you post and that THX’s use of your content will not infringe upon or violate the rights of any third party. We do not want to receive confidential or proprietary information from you through this Site or otherwise. Please note that any information or material you submit over this Site or in any other manner will not be deemed to be confidential. By sending us any information or material, you grant THX and its affiliates an unrestricted, irrevocable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such information or material.

Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing THX’s Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• THX’s designated Copyright Agent to receive notifications of claimed infringement is: General Counsel, 1600 Los Gamos Drive, Suite 130, San Rafael, California, 94903, email: legal@thx.com, fax: 415-492-3987. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to THX customer service through web@thx.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

Counter-Notice. If you believe that your 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 post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:

• Your physical or electronic signature;
• Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
• If a counter-notice is received by the Copyright Agent, THX may 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 THX’s sole discretion.

Disclaimers

THE MATERIALS IN THIS SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT THX) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THX BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR THE INABILITY TO USE THE MATERIALS ON THIS SITE, EVEN IF THX OR A THX AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS SITE.

Indemnity

You agree to indemnify and hold THX, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against THX by any third party due to or arising out of or in connection with your use of the Site.

Termination

You agree that THX, in its sole discretion, may terminate any account (or any part thereof) you may have with us or use of the Site and remove and discard all or any part of your account or any of your postings, for any reason whatsoever in THX’s sole discretion. THX may also in its sole discretion and at any time discontinue providing this Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or any account you may have or portion thereof may be effected without prior notice, and you agree that THX shall not be liable to you or any third-party for any such termination.

Miscellaneous

You may not use or export or re-export any Content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations. Any offer for any feature, product, or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

These Terms of Use constitute the entire agreement between you and THX with regard to your use of the Site, and any and all other written or oral agreements or understandings previously existing between you and THX with respect to such use are hereby superseded and cancelled. The failure of THX to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. These terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these terms or the Site shall be filed only in the state or federal courts in and for San Francisco County, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms of Use do not confer any rights or remedies on any third parties.

Dated: March 13, 2013

Collection and Use of Personal Information

THX is the sole owner of the information collected by THX from your use of our website or apps. “Personal Information” is information that can be used to identify an individual and may include but is not limited to, name, gender, email address, telephone number, mailing address, device type, operating system, browser, internet or data service provider, and postal code. Personal Information is collected by: (1) our website whenever you order a product or make use of a service offered, (2) our apps when you download or use our apps, and (3) THX when you register for our training classes, subscribe to a newsletter, request information, or participate in a survey or sweepstakes contest. If you use our apps, we may also collect information about your home theater equipment and configuration. If you participate in a survey, questionnaire or sweepstakes, we may also collect information about your equipment, preferences, home theater configuration, user feedback, answers to questions, and, if prizes or monies are paid, your tax withholding and reporting information.

The purpose of collecting and storing Personal Information is to create personal profiles, enable viewing of protected content, improve our products, services and apps, create a better visitor experience, provide feedback and support, measure and analyze our visitor traffic and app usage, administer exams, provide test scores, and/or review information received in order to consider you for employment opportunities.

We do not share Personal Information with companies, organizations and individuals outside of THX unless one of the following circumstances apply:

With your consent: We will share Personal Information with companies, organizations or individuals outside of THX when we have your consent to do so.

For external processing/hosting/email: We provide Personal Information to our affiliates or other trusted businesses or persons to process and/or host it for us, or to send communications on our behalf, based on our instructions and in compliance with our Privacy Policy and any other appropriate confidentiality and security measures. For example, we use third parties to host our website and apps, to track and analyze visitor traffic, and to send email newsletters on our behalf. We provide these companies with Personal Information as necessary to enable them to provide these services.

For legal reasons: We will share Personal Information with companies, organizations or individuals outside of THX if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

• meet any applicable law, regulation, legal process or enforceable governmental request.
• enforce applicable Terms of Service, Terms of Use or other contract, including investigation of potential violations.
• detect, prevent, or otherwise address fraud, security or technical issues.
• protect against harm to the rights, property or safety of THX, our users or employees or the public as required or permitted by law.

We may share aggregated, non-personally identifiable information publicly and with our partners – like manufacturers, licensees, advertisers or connected sites. For example, we may share information publicly to show trends about the general use of our site, products, services and apps.

If THX is involved in a merger, acquisition or asset sale, we will give affected users notice (which may be by posting changes to this Privacy Policy or otherwise on our website) before Personal Information is transferred or becomes subject to a different privacy policy.

Information Security

We work hard to protect THX and our users from unauthorized access to or unauthorized alteration, disclosure or destruction of information we hold. In particular:
We review our information collection, storage and processing practices, including physical, managerial and contractual security measures, to guard against unauthorized access to systems.

We restrict access to Personal Information to THX employees, contractors and agents who need to know that information in order to process it for us, and who are subject to contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations.

Changing or Deleting Personal Information

If you want to inquire about, delete or change any Personal Information or if you no longer wish to receive emails or materials from us, please contact us at web@thx.com.

Extranet/Forum/Bulletin Boards/Chat Rooms

The THX Technician Training Extranet and Forum requires a user id and password and is designed for registered members of our training programs to learn and share information on educational workshops, home theater design, installation, THX technologies, and THX product certification. This portion of the website may contain links owned and operated by third party providers affiliated with THX. The information contained on these sites is not covered by this Privacy Policy, but by their own terms and conditions which you should read carefully. Please be aware that technical and industry related information provided by members on the technical forum is viewable by other forum members. THX does not do anything with this information, is not responsible for editing or verifying it, and cannot guarantee its accuracy.

Discussions on this website are intended for a friendly, professional and respectful exchange of information in a question and answer format. We reserve the right to terminate the accounts of members who use this site in a manner deemed inappropriate by THX.

Cookies, Web Beacons and Web Logs

Cookies: A cookie is a small data string that is written on your computer hard drive by a web server. Cookies can play an important role in providing a good customer experience using the web. Among other things, cookies enable a website to maintain information when a user’s web browser requests a series of web pages. Without cookies, for example, a website owner may not be able to recognize that a user just completed the first step during an online search so that the search results can be presented. Cookies generally hold information, including data strings that contain a unique user ID which allow websites, including ours, to customize your experiences on the site and gather information about your navigation of the site. THX’s website may use different kinds of cookies, including HTTP cookies (also known as browser cookies) and Local Shared Objects such as Flash cookies that are built for use with the Adobe® Flash® Player. Information gathered from cookies also helps us understand how our web pages are performing and provides website usage information to support customizing and improving our site and its messaging. We also use cookies to help verify the identity of a website user or to recognize you as a repeat visitor and remember your preferences. You can manage cookies by using features and functions available on most Internet browsers. For example, most browsers will allow you to choose what cookies can be placed on your computer and to delete or disable cookies. You can find instructions for managing cookie controls on the browser’s websites or in the help sections of particular browsers. Please note that disabling cookies may prevent you from using specific features on our site and other websites, such as ordering products or services and maintaining an online account.

Web Beacons: THX and third-party advertisers may use web beacons. Some THX web pages contain web beacons in the form of clear .gif files, which are electronic images that allow for the collection of information about your interactions on our sites. Web beacons may be used to place advertisements, to understand website traffic patterns and the number of visitors to our website, and to measure the effectiveness of advertisements or email messages.

Web Logs: Standard web logs are used for collecting files accessed, date and time of access, and IP address of the computer accessing the information.

Children and Parents

THX’s products, services, site and apps are directed at adults. THX does not knowingly collect information from children under the age of thirteen (13) years old. No one under age 13 is allowed to provide any Personal Information or use our site, apps, online store or forums. Minors between the ages of 13 and 17 must get the permission of their parent(s) or legal guardians(s) before making purchases, including subscriptions, on this site or our apps.

International

When we process Personal Information in the United States, we follow United States data protection and privacy regulations, which may not offer the same level of protection as in other parts of the world, such as the European Union. If you are using our site, services or apps from a country other than the United States (where our servers are currently located), various communications will necessarily result in a transfer of information across international boundaries. Accordingly, by using our site, services or apps, you consent to the transfer, storage and use of your data to and in the United States.

Effective Date of Policy

THX reserves the right to change its Privacy Policy at any time with or without notice, effective upon posting the changed version on this site. Changes that we make to this Privacy Policy will be prospective, not retroactive. The effective date of this version of the Privacy Policy is listed below.

Effective date of revision: December 13, 2012

©2012 THX Ltd.