Please read these Terms of Service (these “Terms”) carefully, as they constitute a legally binding agreement between Whirlwind Production, LLC DBA Audition Solutions, a South Carolina Limited Liability Company (“Whirlwind Production, LLC DBA Audition Solutions,” “Audition Solutions,” “we,” “us,” or “our”) and an end-user (“you” and “your”) and apply to your use of our website and Services (as defined below). In case you are utilizing the Services as a representative of a party (e.g. your employer or customer, collectively the “Client”), your acceptance of these Terms also binds the Client.

This is a binding agreement. If you use the Services or click accept or agree to these Terms if presented to you in a user interface for the Services, or you have signed a subscription agreement that serves as a master agreement, you are legally bound by the obligations in these Terms. If you are entering into these Terms on behalf of a Client, you represent and warrant that you have the authority to bind the Client to these Terms, and any reference to “you” and “your” will refer and apply to that party. If you do not agree to all of these Terms, you shall not use the Service and you should not set up an Account (as defined).

By agreeing to these Terms, you expressly agree that except for limited circumstances, the parties will only resolve disputes by arbitration, solely on an individual basis.

You hereby agree to accept these Terms by opening an account under a username, notwithstanding any existing services agreement to which you may also be a signatory which incorporated these Terms by reference.

You also agree to abide by our rules and policies, including our Privacy Policy (which explains what information we collect from you and how we protect it) that are expressly incorporated into and are a part of these Terms. Please read them carefully.

Once you accept these Terms you are bound by them until they are terminated. See Section 7 (Term and Termination).

a. Right to Use and License. Subject to your compliance with these Terms, we hereby grant you a non-exclusive, non-transferable, non-assignable, non-sublicensable and revocable right to use the Services solely for the purposes of utilizing our Service to create and manage audition events and solely in the manner described in these Terms and in any technical documentation contained in, or provided with, the Services.

You acknowledge and agree that you are only being granted a right to use the Services and nothing is being sold to you. You do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Service in accordance with the use rights specified and other terms, conditions, and restrictions of these Terms. We reserve all other rights that are not granted in these Terms. See Section 4 for more details on your use and Intellectual Property Rights.

b. What We Provide. The Services include but are not limited to a hosted software solution (“Platform”) that allows you to create and manage events and associated data specifically for auditions.

Our Platform is a web dashboard (“Dashboard”) that allows you to, via the Dashboard, create event(s) for audition(s), add coordinator(s) to help you manage the events, create categories for the event(s), specify scoring for the categories, add judges to the event(s), add participant(s) to the event(s), open a registration period for participants to be registered, start and end the event(s), and generate final scoring and report based on event results. For more details contact us.

c. Use Restrictions. You agree to not, directly or indirectly (and will not permit any third party) to:

• do anything with the Services other than use them for your own use as intended under these Terms, including not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services;
• use Whirlwind Production, LLC DBA Audition Solutions' name, trademarks, service marks, trade names, designs, logos, photos, or any other materials we make available via the Services, except as allowed by these Terms;
• remove, alter or destroy any copyright notices or other proprietary markings contained on or in the Services or infringe our Intellectual Property Rights;
• copy, modify, translate, adapt, merge, archive, download, upload, disclose, distribute, sell, lease, syndicate, broadcast, perform, display, make available, make derivatives of, or otherwise use the Services or its content other than as expressly permitted;
• reverse engineer, duplicate, decompile, disassemble, or decode any part of the software we provide or otherwise extract source code of the Service;
• use any robot, spider, crawler, scraper, avatar, miner or other manual or automated means to access the Services, “scrape” or download data from any part of our Platform or our website, or extract any information that doesn't relate to Your Content;
• upload viruses or other malicious code or otherwise compromise, bypass, or circumvent the security of the Services; disrupt or hinder any pages, servers, networks or providers; or fail to follow protocols;
• attempt to detect, scan, or test vulnerabilities of the Services or any system/network, or breach/override security or authentication protections;
• impersonate another person or falsely represent your association with any entity;
• access the Service in ways not authorized by these Terms;
• leverage the Service to produce datasets for neural network training, machine modeling, or developing templates or products for third-party;
• transmit, distribute, publish, use, or otherwise make available material that would give rise to criminal or civil liability; or
• use our Platform, Dashboard, or Services for any illegal purpose.

In all cases, we will determine in our sole discretion whether any action violates the above rules.

d. Service Updates. You understand the Services will evolve from time to time and may be updated with or without notice, including adding or removing features, products, or functionalities.

e. Fees. Usage of our Services is subject to the fees set out on our website or specified in any contract you have agreed upon. Nothing prevents us from revising fees or introducing new features with additional charges; prices on your current subscription/contract won’t change until that term ends.

a. Registration. Account (“Account”) creation is situational. Access uses an OAuth provider associated with your email that we’ve added to the Platform. You represent and warrant that (a) all registration information you submit is truthful and accurate; and (b) you will maintain and promptly update such information to keep it true, accurate, current and complete. You may delete your Account at any time, in accordance with Section 7(b).

• Primary Event Coordinator. To gain access to create events you must sign a contract with us. Your account is fully activated when you sign in with an applicable OAuth provider on our Platform.
• Event Coordinator, Judge, & Sponsor. Primary Event Coordinators will add you to an event and you will receive notice via email. Your account is fully activated for the event when you sign in with an applicable OAuth provider on our Platform.

b. Eligibility. The Services are only available to end-users who can form legally binding contracts under applicable law. By accessing or using the Services, you represent and warrant that you are at least 18 years of age or over the age of majority in the state or country where you are a resident or citizen. You are not eligible to be a Client or an end-user if you are barred from using the Services under the laws of the United States or any other applicable jurisdiction, including pursuant to Section 15 (Export Control) in these Terms.

c. User Information & Credentials. When you sign in on the Platform you will be asked to choose an oAuth provider for your account. You acknowledge and agree that you are exclusively responsible for the security and confidentiality of your account on the oAuth provider and email address selected and for all use of the Services and all related charges that may arise from such use of the Services in connection with your oAuth account, with or without your knowledge. You may not share your Account or password with anyone, and you agree to notify us immediately of any actual or suspected unauthorized use of your Account, your account on the oAuth provider used or any other breach of security as related to the Services, including on any hardware device which you may use to access our Services. Each end user must maintain their own Account.

a. Your Content. All materials uploaded to or transmitted via the Platform are “Your Content.” You own all rights and title in Your Content, including any Intellectual Property Rights. We do not claim ownership other than the rights granted under these Terms.

b. Rights You Grant Us. You grant us a worldwide, royalty-free, sublicensable license to host, store, cache, use, display, reproduce, modify, adapt, edit, analyze, transmit, and distribute (“Handle”) Your Content during the Term solely to provide the Services. The specific information you permit us to Handle is determined by customizable settings that are in your control. We do not utilize Your Content to obtain any customer specific intelligence. Our scope of use of data in all instances is only for purposes of enhancing features, latency and the performance of our Platform and does not in any way relate to capturing and using personal information of you or users of your event.

You agree that submission of any ideas, suggestions, documents, and/or proposals to us (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable and transferable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback for any purpose.

c. Our Rights. The Services utilizes technology, capabilities and contain certain materials provided by us as well as our licensors, including but not limited to, all proprietary content, information, software, images, text, graphics, illustrations, logos, and as applicable audio and video. We and our licensors reserve all ownership and Intellectual Property Rights to all parts of our Services. For the purposes of these Terms, “Intellectual Property Rights” means all (i) patents, patent disclosures, and inventions (whether patentable or not), (ii) trademarks, (iii) copyrights and copyrightable works (including computer programs), and rights in data and databases, and (iv) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. Your use rights, as set out under Section 2 above are subject to compliance with these Terms and as applicable payment of the applicable fees.

d. Rights Granted to Third Parties. Providers that deliver part of our Services, whether pursuant to a contract directly with you or though us, require rights to Handle Your Content as applicable to the service they provide. Each Provider has its own contractual terms that apply. Please review the specific terms of service or equivalent agreement which apply to the Provider that you elect to utilize in respect of each of the Platform. While we expect each Provider to conform to industry norms and comply with their privacy policies and the license and rights granted to them under terms agreed upon with you, we do not monitor nor make any guarantees or warranties in respect of their compliance with their contractual and legal obligations.

We shall monitor your use of the Services, including the Platform, and collect and compile data and information related to all such use in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform (“Aggregated Statistics”). Such Aggregated Statistics are wholly owned by the Company with all rights reserved and may be used for operating, developing, providing, promoting, and improving the Services.

By entering into these Terms or using the Services, you agree to receive communications from us, including via email, and/or push notifications. Communications from us may include, but are not limited to, operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, and news concerning us and industry developments.

a. Term. These Terms commence on the earlier of the date you first opened an Account to use the Services or the date when you accepted these Terms, and these Terms will remain in full force and effect while you use the Services, unless terminated earlier in accordance with this Section.

b. Termination by Us. If you have breached any provision of these Terms, if we are required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), or if it is commercially impracticable for us to provide the Services, we have the right to, immediately and without notice, suspend or terminate any of the Services provided to you.

c. Effects. You agree that all terminations will be made in our sole discretion and that we will not be liable to you or any third party for any termination of your Account, provided that if applicable, we shall refund you any prepaid amount, on a pro-rata basis, for any duration of the term of subscription or contract to our Service which remains after the termination of your Account.

d. Termination by You. Other than the clauses which survive any expiry or termination of these Terms, these Terms (with surviving terms excepted) shall not apply to you your notice to us requesting Services no longer be provided.

e. Effect of Termination. If Services are terminated for any reason, your use rights shall cease and you may not be able to access your Account and all related information or files associated with or inside your Account (or any part thereof) may be deleted. We will not have any liability whatsoever to you for any suspension or termination.

f. Survival. The following Sections shall survive any termination of your use right: This Section 7(f), Sections 4(a), 4(b)(ii), 4(c), 4(d), 7(e), 9, 10, 11, 12, 14, 16, and 19.

These Terms are subject to occasional revision by us. When changes are made, we will make a new copy of these Terms of Service available on the website. We will also update the date at the top of these Terms. If we make any substantial changes, and you have registered with us to create an Account, we will also send an email to you at the last e-mail address you provided to us to notify you. Any changes to these Terms will be effective immediately for new registered users of the Services and will be effective 30 days after posting notice of such changes on the website for existing registered users, provided that any material changes will be effective for registered users who have an Account with us upon the earlier of 30 days after posting notice of such changes on the website or 30 days after dispatch of an e-mail notice of such changes to registered users. We may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. IF YOU DO NOT AGREE TO ANY CHANGES AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU WILL STOP USING THE SERVICES. OTHERWISE, YOUR CONTINUED USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.

a. Your Indemnification Obligation. You agree, to the extent permitted by law, to indemnify, defend, and hold harmless us, our partners, directors, officers, employees, licensors, providers and agents (“Whirlwind Production, LLC DBA Audition Solutions Parties”) from and against any and all claims, demands, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) (collectively, "Losses") due to, arising out of, or relating in any way to: (a) your access to or use of the Services; (b) your breach of these Terms, any rights of another party or any applicable law or regulation; or (c) your negligence or willful misconduct. We reserve the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, these Terms and/or your access to the Services.

b. Indemnification by Us. We will defend, indemnify and hold harmless each you and as applicable your officers, directors, employees, contractors and licensors (collectively, “Subscriber Indemnitees”), from and against any costs, damages (including reasonable attorneys’ fees) that are awarded in final judgment against or paid in settlement in connection with any action or suit brought against a Subscriber Indemnitee by a third party based upon a third-party claim that (i) the Services, as provided by us pursuant to these Terms (exclusive of any Your Content), infringe any Intellectual Property Rights or misappropriate any trade secret, or (ii) arises from or relate to the gross negligence, willful misconduct, fraud or more culpable acts or omissions of us, violation of applicable law by us, or any breach by us of any of its representations or warranties hereunder. Subscriber Indemnitees agree to provide us reasonable cooperation, at our expense, in the defense and settlement of such claim, and we shall have sole authority to defend or settle such claim, provided (y) no settlement shall require payment or a confession or admission of fault by any Subscriber Indemnitees or require any Subscriber Indemnitee to take (or refrain from taking) any action without the applicable Subscriber Indemnitee’s prior written consent and (z) if such claim relates to any Intellectual Property Rights or Confidential Information of the Subscriber Indemnitees, the Subscriber Indemnitees shall have sole control of the defense and settlement of such claim.

c. Injunctions. If your use of the Services is, or in our reasonable opinion is likely to be, enjoined due to claims specified in Section 9(b), then we may at our sole option and expense (without limiting our indemnity obligation to Subscriber Indemnitees): (a) replace or modify the Services to make them non-infringing and of substantially equivalent functionality; (b) procure for you the right to continue using the Services under these Terms; or (c) terminate your rights and our obligation under these Terms with respect to Services and refund to you a pro-rata portion of the fees paid in advance by you in respect of the Services.

d. Exclusions. Notwithstanding the terms of Sections 9(b) (Indemnification by us) and 9(c) (Injunctions), we will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) any modification or alteration of the Services by Subscriber Indemnitee or existing employees, agents or contractors other than as permitted in these Terms, or any user’s failure to reasonably safeguard login credentials, if such claim would not have occurred but for such modification or alteration, or (b) Subscriber’s or a user’s use of the Services other than as permitted in these Terms.

e. Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF US AND OUR PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, PERMITTED CONTRACTORS, AND LICENSORS WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF SUCH THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

a. You expressly understand and agree that, to the extent permitted by applicable law, your use of the Services is at your sole risk, and the Services are provided on an “as is” and “as available” basis, with all faults. We expressly disclaim all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

b. Except as explicitly provided hereunder, We make no representation, warranty, or condition with respect to the Services, including but not limited to, the quality, effectiveness, and other characteristics of the Services, and of those of the Providers. Except as provided under a service level agreement, We make no representation or warranty that the Services will be uninterrupted, error-free, or timely. The Services may be subject to delays, cancellations and other disruptions.

c. No advice or information, whether oral or written, obtained from us or through the Services will create any warranty not expressly made in these terms.

a. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL A PARTY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SERVICES.

b. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY WILL NOT BE LIABLE BEYOND THE GREATER OF (i) $100 USD, (ii) THE AMOUNT YOU PAID US IN THE 12 MONTHS PRECEDING THE DATE OF THE ACTIVITY GIVING RISE TO THE CLAIM. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION.

SOME COUNTRIES, STATES, PROVINCES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY AS STATED IN THIS SECTION, SO THE TERMS HEREIN MAY NOT FULLY APPLY TO YOU.

a. Governing Law. These Terms and all related orders and subscriptions related hereto, and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of South Carolina, without giving effect to the conflict of laws provisions thereof.

b. Arbitration. You and we agree that any controversy, allegation, or claim that arises out of or relates to the Service, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute” )arising out of will be resolved by binding arbitration, rather than in court, except for: (1) any controversy, allegation, or claim that arises out of or relates to our actual or alleged intellectual property rights;; (2) any claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; (3) any claim for equitable relief.

c. Informal Dispute Resolution. You and we agree that good faith informal efforts to resolve disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court (which you agree shall only be done in the city of Columbia, South Carolina) if a party so elects), we will personally meet or confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this clause (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference at your cost, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which will occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@auditionsolutions.net. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your dispute. Your email must be followed up with a written mailed notice to our address at support@auditionsolutions.net.

d. Waiver of Jury Trial. YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes will be resolved by arbitration under these Terms, except as set out under Section 12(b) above.

e. Waiver of Class Actions. YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.

f. Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision in these Terms with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Section 12 and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and we agree that either party will have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the AAA Commercial Arbitration Rules then in effect in the city of Columbia, South Carolina, by one arbitrator alone and such arbitrator will have exclusive authority to resolve any dispute, including, without limitation, disputes arising out of or related to the interpretation or application of this Section 12, including the enforceability, revocability, scope, or validity of the arbitration requirement or any portion of this Section 12.

The Services can be accessed from countries around the world and may contain references to features and services that are not available in your country. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. If you are using the Services and are not in the United States, you agree that the location for dispute resolution is acceptable to you and that you will not challenge the forum as being inconvenient for you.

If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer our products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be deemed given: (i) when delivered personally; (ii) one business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) when sent by email, on the date the email was sent if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/permitted by these Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following email address: policy@auditionsolutions.net

These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may assign these Terms and any other right or obligation to a party without any consent or notification requirement to you.

We will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

These Terms, along with any of our ordering documents such as master agreement, or as found on our website, make up the final, entire, and exclusive agreement between you and us with respect to the subject matter hereof and supersede any prior agreements and discussions, both written and oral, with respect to such subject matter. No purchase order or other document issued by you in respect of our Services shall control.

We welcome comments, questions, concerns, or suggestions. Please send inquiries to privacy@auditionsolutions.net.