END USER LICENSE AND TERMS OF SERVICE
Effective Date: March 1, 2018
Last Updated Date: March 1, 2018
1. Acceptance of the Terms and Conditions.
- Binding Agreement; Description. Ice Exchange Inc. (“Company,” “Ice Exchange,” “Ice,”, “Iconn,” “Iconn.me,” “Ice Connect”, “we,” “us” or “our”) provides and makes available its website located at www.staging.iconn.me (the “Site”), along with its Ice mobile application (the “App”), and application programming interface instructions (the “APIs,” together with the App and the Site, the “Service”). All uses of the Service are subject to the terms and conditions contained in this End User License and Terms of Service (this “EULA”). Please read this EULA carefully. By accessing, browsing, or otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by this EULA. If you are a producer or agent using the Service on behalf of an Artist (as defined below) you represent and warrant and you are authorized by that Artist to enter into this EULA on their behalf and you agree to be bound by this EULA on their behalf. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EULA and you agree to be bound by this EULA on behalf of that organization. If you do not agree, you may not access, browse or use the Service. AS FURTHER DESCRIBED BELOW, THIS EULA REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU CAN OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING HELLO@ICONN.ME WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS ARBITRATION AGREEMENT.
- Changes to this EULA. You understand and agree that Company may change this EULA at any time without prior notice; provided that Company will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised terms and conditions will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised terms and conditions. If any change to this EULA is not acceptable to you, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Company provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Company that arose prior to the effective date of such revision.
- Eligibility. By using the Service, you represent and warrant that you are at least 18 years of and that you have not been previously suspended or removed from the Service or, if you are under 18 years of age, that you are at least 13 years of age and have permission to use the Service from your parent or guardian who has read and agreed to these Terms on your behalf. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY COMPANY. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
2. The Service.
- Description. The Service is a platform that facilitates communication and contracting between performing artists (each, an “Artist”) and individuals or entities who would like to book an Artist (each, a “Buyer”) for a performance. The Service enables (a) Buyers to make offers to Artists for performance bookings and (b) Artists to accept or reject offers. Additionally, if an Artist accepts an offer, then the Service will facilitate the negotiation and agreement of relevant terms and conditions for the performance (“Performance Terms”). The Service further facilitates the payment of performance fees by Buyers to Artists.
- Relationship of the Parties. If a Buyer submits an offer to book a performance with an Artist and the Artist accepts that offer, a valid and binding contract is formed between Buyer and Artist directly. Any agreement, including the Performance Terms, entered into between Buyer and Artist, including Performance Terms based on a template provided by the Service (“Template Contract”), is between that Buyer and Artist and Company is not a party to it. You understand and agree that Company does not act as an insurer or as any user’s contracting agent. Unless explicitly specified otherwise on the Service, Company’s responsibilities are limited to: (i) facilitating the availability of the Service, and (ii) serving as the limited payment collection agent of each Artist for the purpose of accepting payments from Buyers on behalf of the Artist.
- Mobile Services. The Service may be available via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the related Mobile Services must be in accordance with this EULA.
- Log-In Credentials. While you may always browse the public-facing pages of the Service without registering, in order to enjoy the full benefits of the Service and to download or Post (defined below) User Content (defined below), you must request an account from the Company for the Service (an “Account”). Iconn reserves the right to accept or reject requests for Accounts in its sole discretion for any or no reason. The Service may allow you to register and log in using sign-on functionality provided by social networks or third party sites or services, such as Facebook. You agree to abide by the applicable social networks’ or third parties’ terms and conditions applicable to you.
- Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You will notify Company immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your login credentials or any other breach of security with respect to your Account. Company will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Company of such unauthorized use or loss of your credentials. Separate login credentials may be required to access External Sites (as defined below).
- Accuracy of Information. When requesting or creating an Account, you will provide true, accurate, current, and complete information as Company requests. You will update the information about yourself promptly, and as necessary, to keep your Account current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, or an infringement or violation of any third party rights, or of any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Company may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Cancellation. If you want to cancel your Account, please email email@example.com.
4. Intellectual Property Rights
- License. The Service is licensed, not sold, to you for use only under the terms of this EULA. Company reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this EULA, Company hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your internal business purposes.
- Content. Except for User Content, the content made available on or through the Service, including without limitation, any text, graphics, photos, software, and interactive features, may be protected by copyright or other intellectual property rights and owned by Company or Company’s third party licensors (the “Company Content”). You may not copy, reproduce, upload, republish, transmit, post or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this EULA or permitted by the Service’s functionalities. You may not modify or use any materials obtained from or available through the Service unless you have obtained the applicable copyright owner’s prior express written authorization. Company solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill.
- Marks. The Company trademarks, service marks, and logos (the “Company Trademarks”) used and displayed on the Service are Company’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Company Trademarks, the “Trademarks”). Nothing on the Service or in this EULA should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without Company’s prior express written consent for each individual use. You may not use the Trademarks to disparage Company or the applicable third-party, Company’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Company’s prior express written consent. All goodwill generated from the use of any Company Trademark will inure solely to Company’s benefit.
- Restrictions. You may not sell, transfer, assign, license, sublicense, or modify the Company Content or App, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Company Content in any way for any public purpose. The use or posting of any of the Company Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In addition, you also may not attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this EULA, then your right to access and/or use the Company Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Company Content.
5. User Content.
- Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, literary works, photographs, audiovisual works, musical works, sound recordings, artwork and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws.
- Screening User Content. Company offers users the ability to submit User Content to the Service. Company does not pre-screen any User Content, but reserves the right to refuse or delete any User Content in its sole discretion. In addition, Company has the right – but not the obligation – in its sole discretion to refuse or delete any User Content that it reasonably considers to violate this EULA or be otherwise illegal or inappropriate. Company does not guarantee the accuracy, integrity or quality of any User Content, and under no circumstances will Company be liable in any way for any User Content, including liability for any errors or omissions in any User Content or for any loss or damage of any kind incurred as a result of the use of any User Content uploaded, posted, emailed or otherwise transmitted via the Service.
- Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Licenses to User Content. You hereby grant Company an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means, through any media and formats now known or hereafter developed, for the purposes of (a) advertising, marketing, and promoting Company and the Service; and (b) providing the Service as authorized by this EULA. You further grant Company a royalty-free license to use your user name, image, and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to Company any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to Company will be considered non-confidential and non-proprietary, and treated as such by Company, and may be used by Company in accordance with this EULA without notice to you and without any liability to Company. For the avoidance of doubt, the rights granted in the preceding sentences of this Section 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 Company 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), a PRO, a sound recording PRO (e.g., SoundExchange), 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. You must 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. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Company under these Terms. You represent and warrant that: (a) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms; (b) 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; (c) 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 (d) 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.
- Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this EULA to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this EULA or have such music publisher enter into this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this EULA.
- Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
- No Liability. For the avoidance of doubt, Company will not be liable for any unauthorized use of User Content by any other user or third party.
6. Fees and Payment Terms
- Performance Fees. If you are a Buyer and your offer is accepted by an Artist, you will pay to the applicable Artist all amounts agreed upon in the Performance Terms between you and Artist for the applicable performance (“Performance Fee”).
- Service Fees. If you are a Buyer, you will pay to Company 10% of the total amounts you agree to pay to an Artist for each performance booked via the Service (“Service Fee”). Upon acceptance by an Artist of an offer from a Buyer, Company will notify Buyer of the Artist’s acceptance and Buyer must pay any deposit due to the Artist and the Service Fee to Iconn within the timeframe specified by Iconn in order to secure the booking.
- Additional Fees. From time to time, Buyer or Artist may engage Company to perform additional services, e.g. “day-of” logistics, security, transportation, etc. Any additional services will be subject to a separate agreement and additional fees as mutually agreed by the parties.
- Third Party Payment Processor. All fees or payments will be processed via Company’s third party payment processor. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Company changes the fees for the Service, including by adding additional fees or charges, Company will provide you advance notice of those changes. If you do not accept the changes, Company may discontinue providing the Service to you. Company will charge the payment method you specify at the time of purchase. You authorize Company to charge all sums as described in this EULA to that payment method. If you pay any fees with a credit card, Company may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You are liable for any taxes (including VAT, if applicable) required to be paid on your use of the Service or on any related payment received (other than taxes on Company’s income).
7. Restrictions on Use of the Service.
- In using the Service, you agree not to:
- take any action that imposes an unreasonable load on the Service’s infrastructure;
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Service;
- delete or alter any material Company or any other person or entity Posts on the Service;
- frame or link to any of the materials or information available on the Service.
- alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
- use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Company or obtained from the Service;
- access, tamper with, or use non-public areas of the Service, Company’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Company’s providers;
- harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Company employees;
- provide any false personal information to Company;
- create a false identity or impersonate another person or entity in any way;
- create a new account with Company, without Company’s express written consent, if Company has previously disabled an account of yours;
- solicit, or attempt to solicit, personal information from other users of the Service, except as expressly permitted by the functionality of the Service;
- restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about users of the Service;
- use the Service to send emails or other communications to persons who have requested that you not send them communications;
- Use the Service, without Company’s express written consent, for any unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
- 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;
- interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
- violate any applicable federal, state, or local laws or regulations or the terms of this EULA; or
- assist or permit any persons in engaging in any of the activities described above.
8. External Sites.
The Service may contain links to third party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Company is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Company or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Company, you agree that:
- Company has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Company is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Company perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Company respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Company’s intellectual property policy is to (i) remove or disable access to material that Company believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Company considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Company has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Company’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Company with the user alleged to have infringed a right you own or control, and you hereby consent to Company making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- Identification of the specific 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 Company to locate the material;
- Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the 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.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Company’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: P.O. Box 158 Saddle River Nj 07458
- Counter Notification. If you receive a notification from Company that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Company’s Designated Agent through one of the methods identified in Section 10.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;
- 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 Company may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.b above or an agent of such person; and
- A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Company in response to a Notification of Claimed Infringement, Company will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Company will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Company will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Company’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Company’s system or network
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:“[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”17 U.S.C. § 512(f).Company reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution.
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND COMPANY AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by a reputable courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Company, to you via any other method available to Company, including via e-mail. The Notice to Company should be addressed to 345 West 14th Street, 2A, New York, New York 10014, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Company do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available at http://www.adr.org. If you are required to pay a filing fee to commence arbitration against Company, then Company will promptly reimburse you for your confirmed payment of the filing fee upon Company’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and Company agree the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) arbitration will only be conducted if the damages sought exceed $75,000; (ii) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (iii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event Company or a third party breaches this EULA, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
- Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Company may recover attorneys’ fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- Modifications. In the event that Company makes any future change to the Mandatory Arbitration provision (other than a change to Company’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Company’s Arbitration Notice Address, in which case your account with Company and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this EULA.
- Enforceability. If only Section 11.a.(No Class Actions) or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to this EULA.
- Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying Company in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to email@example.com, stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and Company will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.
12. Limitation of Liability and Disclaimer of Warranties.
- TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT (WHICH INCLUDES TEMPLATE CONTRACTS) AVAILABLE ON THE SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF. THE COMPANY PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
- THE COMPANY PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, TO THE FULLEST EXTENT PERMITTED BY LAW, NO COMPANY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
- YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ARTISTS OR BUYERS. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE OR TO REVIEW ANY PERFORMER’S QUALIFICATIONS. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. COMPANY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY ARTIST, BUYER, OR THIRD PARTY.
- ANY TEMPLATE CONTRACTS PROVIDED ARE PROVIDED FOR CONVENIENCE ONLY, AND ARE NOT A SUBSTITUTE FOR THE ADVICE OR SERVICES OF AN ATTORNEY. YOUR USE OF ANY TEMPLATE CONTRACT DOES NOT AND WILL NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND COMPANY.
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY COMPANY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIABILITY, AND THE LIABILITY OF ANY OTHER COMPANY PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF $100 AND THE TOTAL FEES YOU PAID TO COMPANY IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
13. Third Party Disputes.
COMPANY IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, INCLUDING ANY REVIEWER OR CREATOR, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE COMPANY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this EULA or your access to, use or misuse of the Company Content or Service. Company will provide notice to you of any such claim, suit, or proceeding. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Company’s defense of such matter.
15. Termination of the EULA.
- Company reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time and for any reason without prior notice or liability. Company reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1, 4.b, 4.c, 4.d, 5.d, 5.e, 5.f, 5.g, 5.h, 5.i, 7, 9, 10, 11, 12, 13, 14, 15, and 17 survive the termination of this EULA indefinitely.
16. Electronic and SMS Communications.
- You Must Have Permission to Send SMS Text Messages to Others. You may be able to use the Service to send SMS text messages, which may include marketing content, to individuals who are not users of the Service. For example, you may invite others to use the Service by text message. You represent and warrant that you will initiate and send text messages using the Service only to those individuals who have expressly agreed to receive SMS text messages, including marketing text messages, from you and Iconn. You agree that you control the sending of text messages you initiate through the Service and that Iconn is limited to facilitating your text message transmissions.
- You Consent to Receive SMS Text Messages from Iconn. By providing Iconn with your mobile telephone number, you consent to receive text messages at that number as requested for account verification, invitations, and other purposes related to the Service. While Iconn does not charge a fee for text messages, your carrier may charge standard messaging, data, and other fees. You are responsible for these charges. Iconn may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Iconn is not responsible for the timeliness or final delivery of the message, as this is out of Iconn’s control and is the responsibility of the cellular telephone operator or other networks.
This EULA is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York, New York. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Company to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Company unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Company and you, this EULA constitutes the entire agreement between you and Company with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior express written consent of Company. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Company may assign this EULA, including all its rights hereunder, without restriction.
If you would like to contact us in connection with your use of the Service, then please refer to the following contact information:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: P.O. Box 158 Saddle River Nj 07458
NOTICE REGARDING APPLE.
You acknowledge that this EULA is between you and Company only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby 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. If Company provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.