AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, TO THE FULLEST EXTENT PERMITTED UNDER LAW. Please review the “Arbitration, Class Waiver, and Waiver of Jury Trial” Section below for the details regarding your agreement to arbitrate any disputes with Company.
Binding Agreement. These Terms are a binding agreement between you, a User (as defined below), and Tonedock and its affiliates and subsidiaries (collectively, “Company,” “we,” “us”). “User” means a visitor to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, then do not use the Service.
The “Service” means the website located at www.tonedock.com and any associated software, applications (including mobile applications) (each, an “App”), and Internet services under our control, whether partial or otherwise, used in connection with the services we provide. The Service streamlines the process of creating, saving, and sharing original music by introducing collaboration and version-control techniques to the powerful digital audio workstations currently used by musicians. The Service offers an online platform for you to Post original sound recordings and the musical works embodied therein, collaborate with others to make music, and share sound recordings across the Internet. As the Service evolves, we reserve the right to make changes to the Service in our sole discretion. You agree to these Terms in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which you acknowledge.
If you access the Service through a mobile device, then you are responsible for all charges you incur, including data fees, from your wireless service carrier.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by ToneDock at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
To use some parts of the Service, you must create an account by providing a valid email address, username, password and other information as prompted by the registration form. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. For example, you may not register using the name of a musical artist (e.g., Deadmau5) unless you have the rights to such name. You represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. We also reserve the right to create verified User accounts and to require additional information from you in order to provide you with a verified User account. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
Your Log-In Credentials. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You must notify us immediately at email@example.com if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your account. We will not be liable for any loss or damage arising from unauthorized use of your credentials.
You represent and warrant that if you create an account and use the Service on behalf of a business entity (e.g., a corporation), then you have the authority to bind the business entity in legal agreements and contracts and, by using the Service, bind such business entity to these Terms.
You agree to receive email from us at the email address you provided to us for customer service-related purposes.
Electronic Notices. By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, then we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
“Sound” refers to materials available for download through ToneDock.
“User Content” means any material that you Post to the Service, including, without limitation, musical works, sound recordings, literary works, photographs, audiovisual works, artwork and Other Content (as defined in Section 7).
We Claim No Ownership. You or a third-party licensor, as appropriate, retain all intellectual property rights to the User Content you Post to the Service. We do not acquire ownership to any User Content Posted to the Service. This also means that you are responsible for protecting any of your rights in your User Content (we need not enforce a violation of these Terms by another User as it pertains to your User Content, although we reserve the right to terminate the rights of such Users to use the Service.
User Content. You represent and warrant that any User Content you Post to the Service is truthful, accurate, not misleading, and offered in good faith, and that you have all rights, licenses, permissions, and authorizations necessary to Post the User Content to the Service and grant the rights to the User Content set forth in these Terms. You acknowledge and agree that, subject to your ToneDock Settings, your User Content is non-confidential and non-proprietary, except as otherwise agreed upon between you and us, and we may use your User Content for any purpose or disclose your User Content to any third party with or without notice to you and without liability to us.
License Grant From You to Us. Subject to your ToneDock Settings, you hereby grant us an unrestricted, assignable, sublicenseable, revocable, royalty-free license throughout the universe to Use all User Content you Post to the Service, through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting the Company and the Service; (ii) sharing information about your User Content with third parties and Third Party Sites, including Users; and (iii) Using your User Content on and through the Service as authorized in these Terms. You also grant us a royalty-free license to Use your name, image, voice, and likeness as made available by you or on your behalf through the Service in conjunction with advertising, marketing, or promoting you, your User Content, the Company, or the Service. For the avoidance of doubt, the rights granted in the preceding sentences of this Section 5.d include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
You Must Have Rights to the Content You Post. Do not Post any User Content to the Service if you are not the copyright owner of, or are not fully authorized to grant rights in, all of the elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content you Post on or through the Service or otherwise have the right to grant the license set forth in these Terms; (ii) the Posting and use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
License. Sounds are licensed to you. Subject to Section 5.g below, you are granted a non-exclusive, non-transferable, perpetual right to use Sounds you obtain through ToneDock in combination with other sounds in music productions to create derivative works. This means that, subject to Section 5.g, you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public and otherwise use Sounds, including for commercial purposes.
License Restrictions. You may not (i) use Sounds in a manner competitive to Company or its licensors, or iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Additionally, for clarity, you may not use the name, image, or likeness of the artist associated with a Sound in any way without that artist’s express written permission.
Ownership. You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act.
The contents of the Service include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and our content (collectively, “Company Content”). All Company Content and the compilation (meaning the collection, arrangement, and assembly) of all Company Content are the property of Company or its licensors and are protected under copyright, trademark, and other laws.
License to You. We authorize you, subject to these Terms, to access and use the Service and the Company Content (provided, however, that licenses to Sounds are subject to Section 5), and to install any Apps, solely for the use of the services we provide, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Company Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Company Content on any copy you make of the Company Content.
You may not copy, reproduce, republish, upload, post, transmit, or distribute any material made available on or through the Service in any way without written permission of the copyright owner, excluding Sounds, which are governed by Section 5. You may not download or copy materials that we do not make expressly available for download without our prior written permission. Modification of materials obtained from the Service, including, but not limited to, User Content, for any purpose not authorized in the Terms is a violation of our copyrights and other proprietary rights or those of our licensors, unless you have obtained express written authorization to the contrary.
Additional Licenses. Certain materials made available for download from or through the Service may be subject to additional or different license terms and conditions, such as terms and conditions set forth in a Creative Commons license or the terms applicable to Sounds. Any such terms and conditions will be identified in advance for such materials, and by downloading any materials governed by any other license terms and conditions, you agree to be bound by and comply with such terms and conditions.
No Implied Rights. There are no implied licenses granted in these Terms. All rights not granted herein are expressly reserved by us, our licensors, or the copyright owner of any User Content.
Company Marks. ToneDock, the ToneDock logo, and other Company logos and product and service names are or may be our trademarks (the “Company Marks”). Without our prior written permission, and except as solely enabled by any link we provide, you agree not to display or use in any manner the Company Marks.
We may also provide areas for Users to comment and Post artwork and other materials; Other Content is subject to the license grant and restrictions set forth in Section 5. Posting Other Content is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. Harmful, obscene, or offensive content is not welcome and we reserve the right to monitor, edit, pre-screen, and remove Other Content, although nothing herein requires us to monitor, edit or remove any Other Content. If you find objectionable content in any Other Content, then please notify us by sending an e-mail to email@example.com. You should exercise discretion, good sense, and sound judgment when Posting Other Content. Once Other Content is Posted, it may live in perpetuity online, and Other Content Posted today could be highly embarrassing or damaging to your credibility or reputation in the future. You are solely responsible for the content of any Other Content. We do not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any Other Content Posted to the Service. The opinions expressed in any Other Content are to be attributed solely to the person or entity that Posted such content. Any reliance you place on material or information set forth in Other Content is at your own risk.
We respect the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
Our intellectual property policy is to (i) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content posted to the Service by “infringers.” We consider an “infringer” to be any User that has uploaded User Content to the Service and for whom we have received at least takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
The DMCA provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the Service infringe your intellectual property rights, then you (or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
Your name, address, telephone number, and email address (if available);
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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent to firstname.lastname@example.org
Counter Notification. If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in Section 8.d , and include substantially the following information
A physical or electronic signature of the subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under Section 8.c above or an agent of such person.
We appreciate hearing from our Users and welcome your comments regarding the Service. Please be advised that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), then we will:
have a perpetual, irrevocable, royalty free, fully paid up, assignable, sublicensable, non-exclusive right in and to any Creative Ideas and will own exclusive rights to any derivative works based upon your Creative Ideas created by or for us;
not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and
be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
You are solely responsible for your User Content on the Service. We do not endorse any, nor are we responsible for, User Content on the Service. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
You agree to use the Service only for its intended purpose. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
take any action that imposes an unreasonable load on the Service’s infrastructure;
frame or link to the Service without permission;
use data mining, robots, or other data gathering devices on or through the Service;
Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
disclose personal information about another person or harass, abuse, or Post objectionable, pornographic or obscene material;
sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
Post advertising or marketing links or content, except as specifically allowed by these Terms;
use the Service after your account has been terminated, without our consent;
use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to us or others;
access the Service from a jurisdiction where it is illegal or unauthorized;
reproduce any part of the Service;
Post any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in User Content;
Post, transmit or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except as permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as we intend;
solicit personal information from anyone under the age of 18;
promote any criminal activity on the Service; or
assist or permit any persons in engaging in any of the activities described above.
We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
We may review and remove any User Content at any time for any reason, including if you engage in activity which, in our sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service.
You are responsible for any claims, fees, fines, penalties, and other liability we or others incur caused by or arising out of your breach of these Terms and your use of the Service.
You are solely responsible for maintaining backup copies of any User Content you upload to the Service. We are not responsible for the deletion or unavailability of any User Content. This includes if we terminate your right to access or use the Service for a violation of these Terms. We will have no liability to you for denying you access to any User Content you Posted to the Service in the event of a breach of these Terms.
Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
Third-Party Sites. You are responsible for evaluating whether you want to access or use any Third Party Site. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on any Third Party Site. You assume all risk and we disclaim all liability arising from your use of them.
We make no promises and, to the fullest extent permitted by applicable law, disclaim all liability of specific results from the use of the Service.
Released Parties Defined. “Released Parties” include us and our affiliates, officers, employees, agents, service providers, partners, and licensors.
DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE, INCLUDING ANY USER CONTENT, SOUND, OR PREMIUM ADD-ON, IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
LIMITATION OF LIABILITY AND INDEMNIFICATION.YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE, INCLUDING USER CONTENT. IF, PURSUANT TO LAW, ANY OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH DO NOT APPLY TO YOU, THEN YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY IN LIGHT OF OUR OFFERING MANY OF THE FUNCTIONALITIES OF THE SERVICE FOR FREE, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT WE WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF CONTENT, INCLUDING ANY USER CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS YOU HAVE PAID TO COMPANY, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST US.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, Premium Add-Ons, Sounds, or User Content, (ii) your use of or reliance on any Company Content, or (iv) your breach of these Terms. Notwithstanding the preceding sentence, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Released Parties if we, in our reasonable discretion, conclude that you are not adequately protecting the Released Parties’ interests or are incapable of protecting our interests, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written c onsent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it but if we are unable to communicate with you in a timely manner because of an inactive e-mail address, then your indemnification obligation will continue notwithstanding our inability to contact you in a timely manner.
Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or we terminate your account, subject to the survival provision of these Terms.
Termination by Us. We may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon our sole determination. You agree to our broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, then you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon our termination of your use of the Service, we may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
Termination by You. You may terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account, then e-mail email@example.com or use any termination functionality that may be offered through the Service. If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by or for us. You grant us a royalty-free license to retain such back-up copies of your User Content on storage media maintained by or for us. If you stop using the Service but keep User Content on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.
These Terms constitute the entire agreement between you and us concerning your use of the Service. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, then you and us nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect. The laws of the Commonwealth of Pennsylvania without reference to its choice or conflicts of law principles will govern these Terms and your use of the Service. You and Company submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Pennsylvania for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Pennsylvania, and we make no representation that Materials included in the Service are appropriate or available for use in other locations. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 5 (Your License to Us and Other Users), 6 (Our Content Ownership and Use), 8 (Intellectual Property Policy), 9 (Suggestions and Submissions), 10 (User Content Disclaimers, Limitations, and Prohibitions), 11 (Consequences of Violating these Terms), 12 (Our Liability), 13 (Term and Termination, 14 (General Terms), and 15 (Arbitration, Class Waiver, and Waiver of Jury Trial).
We are not a party to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. Disputes between Users are subject to Section 12.b. This Section governs disputes between a User and us.
Generally. In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, and except as described in Section 15.c, you and Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 15.b, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Company will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
Fees. If you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Pennsylvania, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 15.g is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.