End user license agreement and terms of service

Last Updated: May 25, 2022

TERMS OF SERVICE

Last Updated: 23 MAY 2022

These Terms of Service (“Terms”) govern the website www.plusmusic.ai (including both mobile and online versions as well as the PlusMusic DJ plug-ins available for download therein) (the “Site”), including your use of interactive features, applications and/or plug-ins (“Apps”), content and/or other online services that we own and control and that post a link to these Terms (collectively with the Site and Apps, the “Service”), which are made available by Look Sharp Labs, Inc., d/b/a PlusMusic (“PlusMusic”, “we”, “our” or “us”). Each time you access and/or use the Service, you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted.  Please do not use the Service if you do not agree to these Terms and the Additional Terms.  If you are using the Service on behalf of an entity or organization (such as a band, group of musicians, a game development studio, or other content creator), then you represent and warrant that you have the authority to bind that entity or organization to these Terms and you agree to be bound by these Terms on behalf of that entity or organization.

Any guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions and posted anywhere within the Service will apply to your use of the Site, the Apps and the Service and/or to services or products offered via the Service (in each such instance, and collectively “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will prevail unless expressly stated otherwise. Please note that certain special or temporary or third-party features and/or services available via the Service may be governed by different terms of use.

1.         CONTENT

Site and Service Content.  The Service offers: (a) music for developers to license for certain game-related uses on either a full “buy out” or a “subject to platform publishing clearance” basis for the requested use in each case (“Licensing Music Content”) and various software tools for developers to integrate their owned or licensed music into games (“Creator Tools”). The Service contains a variety of: (i) materials and other items relating to PlusMusic, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code of both the Service and downloadable plug-ins); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of PlusMusic (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing but excluding Music Content (defined below), collectively, “Content”). The Service (including past, present, and future versions) and the Content are owned or controlled by PlusMusic, our licensors and/or certain other third parties.  Subject to your compliance with these Terms, PlusMusic grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to use the Service as it is presented via the Site for your personal, non-commercial use only.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in PlusMusic’s sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

Licensing Music Content.  PlusMusic connects musicians, game developers, and other content creators in need of a musical soundtrack. The Service is a software based platform that allows game developers and musicians to license music for use within their developed games. The Service contains a cloud-based technology platform and software that enables users such as musicians and artists (collectively, “Licensors”) of the Service to license to other users of the Service (e.g., game developers) (“Licensees”), for agreed-upon compensation, certain sound recordings (each individually, a “Master” and collectively, the “Masters”) and underlying musical compositions embodied therein (each individually, a “Composition” and collectively, the “Compositions”) for the purpose of possible embodiment (“Sample”, “Sampling”) in other derivative works such as video games (each, a “Derivative Work”). Masters, Compositions, and Derivative Works shall be collectively referred to hereunder as “Music Content”. Notwithstanding anything to the contrary herein, where applicable, one (1) or more separate agreement(s) between Licensors, on the one hand, and PlusMusic, on the other hand (each, an “Outside Agreement”), shall control the licensing of any Music Content licensed by Licensors to Licensees on the Service.  For the avoidance of doubt, PlusMusic does not grant any licenses or other rights to any users of the Service with respect to Music Content other than as specifically set forth hereunder or in any Outside Agreement, and any and all further rights shall be governed by the terms of such Outside Agreement(s), if any. For details, see License Agreements.

If you are a composer or author of a musical work and are affiliated with a PRO, then you must timely notify your PRO of any royalty-free license you grant via the Service. 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 any license via the Service or procure that such music publisher also enters into such license. Please remember that merely being the author of a musical work (e.g., the writer of a song) does not necessarily mean you have the right to grant a license for use of that song.  If you are a recording artist under contract with a record label then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label. Finally, if you wish to perform a cover song and license it, you must notify us of all details, and you shall be solely responsible for securing all rights, in and to the underlying musical work before uploading your recording or performance of such musical work to the Service.      

YOU UNDERSTAND AND AGREE THAT PLUSMUSIC IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN LICENSORS AND LICENSEE. YOU ACKNOWLEDGE THAT PLUSMUSIC DOES NOT LICENSE MUSIC CONTENT DIRECTLY OR FUNCTION AS MUSIC LICENSING COMPANY. THE SERVICE MAY BE USED BY LICENSORS AND LICENSEES TO LICENSE OR OBTAIN A LICENSE TO MUSIC CONTENT FOR DEVELOPMENT OF DERIVATIVE WORKS, BUT YOU AGREE THAT PLUSMUSIC HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY MUSIC CONTENT LICENSED THROUGH THE USE OF THE SERVICE, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.  PLUSMUSIC HAS NO CONTROL OVER THE CONDUCT OF LICENSORS, LICENSEES, AND OTHER USERS OF THE SITE AND SERVICE OR ANY MUSIC CONTENT, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. PLUSMUSIC DOES NOT GUARANTEE THE MUSIC CONTENT MADE AVAILABLE ON THE SERVICE BY LICENSORS IS CLEAR FROM A RIGHTS USE PERSPECTIVE AND SUCH MUSIC CONTENT MAY INFRINGE THIRD PARTY RIGHTS.  IT IS SOLELY A LICENSEE’S RESPONSIBILITY TO DETERMINE IF ANY MUSIC CONTENT WILL MEET THE LICENSEE’S NEEDS AND EXPECTATIONS.  PLUSMUSIC WILL NOT PARTICIPATE IN DISPUTES BETWEEN LICENSORS AND LICENSEES.  PLUSMUSIC SHALL NOT HAVE ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO ANY TRANSACTIONS OR RELATIONSHIP BETWEEN LICENSORS AND LICENSEES.

Rights of Others.  When using the Service, you must respect the intellectual property and other rights of PlusMusic and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please notify us immediately.

Creator Tools.  PlusMusic offers a “Software as a Service” solution for you to audition and/or integrate musical and other recordings (in which the rights are already owned and/or controlled by you) into games and other software applications. Details of the Creator Tools are as listed on the Site from time to time. Please note that PlusMusic shall not be liable for your use of any specific music or other sound recording(s) in or in relation to the Creator Tools.

2.         SERVICE AND CONTENT USE RESTRICTIONS

Service Use Restrictions.  You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to PlusMusic; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, PlusMusic, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; (ix): (a) use false or deceptive identities, names or accounts; (b) deploy or otherwise use bots, malware, viruses or scrapers; (c) make it appear as though any aspect of your Account or Music Content, including, without limitation, your plays, likes, messages, reposts, etc., are more successful than they actually were through unauthentic interactions by you or third parties you engage, manage or transact with (e.g., click-fraud, manipulating social media followings, etc.); (d) engage in any activities that are designed to defraud or game PlusMusic or third parties; or (e) deploy, or permit any third party to deploy, any technology on, or in connection with, PlusMusic or PlusMusic branded sites, systems or services that can enable the tracking of site or service activities or users, except with PlusMusic prior express written approval; or (x) otherwise violate these Terms or any Additional Terms.

Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of PlusMusic or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

Availability of Service and Content.  PlusMusic reserves the right to suspend or terminate the availability of the Service and Content (and/or any elements or features thereof including without limitation “muting”, watermarking, or blocking real-time delivery of soundtracks) at any time, in whole or in part, for any reason, in PlusMusic’s sole discretion, and without advance notice or liability.  

3.         PURCHASES AND/OR SUBSCRIPTIONS  

Generally.  To purchase any product or license or subscription via the Service, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence (or if you are a minor, be over the age of twelve (12) and have a credit or debit or credit card where an adult has listed you as an authorized user of their card).  Prior to the purchase of any products or services, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card or otherwise use a valid gift card.  By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization.  For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order.  PlusMusic will automatically bill your credit card or other form of payment submitted as part of the order process for such price.  

Methods of Payment, Credit Card Terms and Taxes.  All payments hereunder must be made Visa, Mastercard, American Express, JCB, Discover or Paypal.  Unless you notify PlusMusic of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If PlusMusic does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by PlusMusic or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes.  PlusMusic shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.

Refund Policy.  Due to the nature of downloadable and streamed content, no Product or Servie may be exchanged or returned and PlusMusic offers no refunds except in exceptional circumstances in our sole and absolute discretion.

Order Acceptance Policy.  Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. PlusMusic reserves the right at any time after receipt of your order to accept or decline your order for any reason. PlusMusic further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by PlusMusic upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.  Do not assume that a cancellation or change of an order you have placed with PlusMusic has been effected until you receive a confirmation from PlusMusic via email or the Service.  As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your Account was received.  

No Responsibility to Sell Mispriced Products or Services.  We do our best to describe every item, product or service offered on this Service as accurately as possible.  However, we do not warrant any particular specification or price on the Service is complete, accurate, reliable, current, or error-free.  In the event of any error relating to the pricing or specifications of any item, product or service, PlusMusic shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we may issue a credit to your account in the amount of the charge. Additional terms may apply. Nothing hereunder affects your statutory rights.

Modifications to Prices or Billing Terms.  The purchase of products and services on the Service is subject to availability.  PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME.  PLUSMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SERVICE OR BY E-MAIL DELIVERY TO YOU.  

4.          ACCOUNTS

In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for a user account through our registration process (“Account”) that we make available through the Service (and/or purchase a subscription as described on the Site from time to time). If you register for any feature that requires a password and/or username, you must select a password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) You agree and undertake to provide only true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete and that you are solely responsible for all activities that occur under your Account, password, and username – whether or not you authorized the activity. You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password and you agree to immediately notify us of any unauthorized use of your Account, password, or username, or any other breach of security. Your Account is personal to you and you agree to not sell, transfer, or assign your Account or any Account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.  If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your Account.  We also reserve the more general and broad right to terminate your Account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability and without reimbursement.

Your Interactions With Other Users; Disputes.  You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.  Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.

Alerting Us of Violations.  If you discover any content that violates these Terms, then you may report it to us here.

7.         PROCEDURE FOR ALLEGING INFRINGEMENT OF OTHER INTELLECTUAL PROPERTY

If you believe that any of your intellectual property has been infringed by an improper posting or distribution via the Service, then you may send an email to info@plusmusic.ai that includes all of the following:

(a)        a legend or subject line that says:  “Intellectual Property Infringement Notice”;

(b)        a description of the intellectual property that you claim has been infringed;

(c)        a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);

(d)        your full name, address, telephone number and email address;

(e)        a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

(f)         a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(g)        your electronic or physical signature.

We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to PlusMusic with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

8.         QUESTIONS AND SUPPORT

You agree to promptly notify us if you change your email or mailing address by updating your Account information.  If you have a question regarding using the Service, you may contact us at info@plusmusic.ai. You acknowledge that the provision of customer support is at PlusMusic’s sole discretion and that we have no obligation to provide you with customer support of any kind.

9.          LINKING TO THE SERVICE

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links incorporate only text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with PlusMusic or cause any other confusion, and (c) the links and the content on your website do not portray PlusMusic or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to PlusMusic. PlusMusic reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

10.        LINKS TO THIRD PARTY SITES

Linked Services; Advertisements. The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with PlusMusic. PlusMusic has no control over the content, operations, policies, terms, or other elements of Linked Services, and PlusMusic shall assume no obligation to review any Linked Services. PlusMusic does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, PlusMusic is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services.  Finally, PlusMusic will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.  PlusMusic disclaims all liability in connection therewith.

Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  PlusMusic disclaims all liability in connection therewith.

12.        DISPUTE RESOLUTION

Certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and PlusMusic agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act.  

First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of PlusMusic’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 12(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such information exists or if such information is not current, then we have no obligation under this Section 12(A).  Your notice to us must be sent via email to info@PlusMusic.ai. For a period of sixty (60) days from the date of receipt of notice from the other party, PlusMusic and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or PlusMusic to resolve the Dispute or Excluded Dispute on terms with respect to which you and PlusMusic, in each of our sole discretion, are not comfortable.

Binding Arbitration.  If we cannot resolve a Dispute as set forth in this Section 12 (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND PLUSMUSIC (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE.  For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between PlusMusic and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. PlusMusic and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 12(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and PlusMusic regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of PlusMusic consent to in writing.  If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in San Diego, California.  You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require PlusMusic to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then PlusMusic will have the right to elect to pay the fees and costs and proceed to arbitration.  The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  This arbitration provision shall survive termination of these Terms or the Service.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above in this Section 12; (b) filing for arbitration as set forth in this Section 12; or (c) filing an action in state, Federal or provincial court.  

Injunctive Relief.  The foregoing provisions of this Section 12 will not apply to any legal action taken by PlusMusic to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or PlusMusic’s intellectual property rights (including such PlusMusic may claim that may be in dispute), PlusMusic’s operations, and/or PlusMusic’s products or services.  

No Class Action Matters.  YOU AND PLUSMUSIC 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 OR AS AN ASSOCIATION.  Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in this Section 12 to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to this Section 12. Notwithstanding any other provision of this Section 12, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.

Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in San Diego County, California. Accordingly, you and PlusMusic consent to the exclusive personal jurisdiction and venue of such courts for such matters.

Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

Governing Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of New York, without regard to its conflicts of law provisions.

13.        DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.  THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, PlusMusic, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “PlusMusic Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

(a)     the Service (including without limitation the Content and Music Content);

(b)     the functions, features, or any other elements on, or made accessible through, the Service;

(c)     any products, services, developer code or instructions offered or referenced at or linked through the Service;

(d)     security associated with the transmission of your User-Generated Content transmitted to PlusMusic via the Service;

(e)     whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f)      whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;

(g)     whether any defects to, or errors on, the Service will be repaired or corrected;

(h)     whether your access to the Service will be uninterrupted;

(i)      whether the Service will be available at any particular time or location; and

(j)      whether your use of the Service is lawful in any particular jurisdiction.  

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A PLUSMUSIC PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLUSMUSIC PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

14.        LIMITATIONS OF OUR LIABILITY

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY PLUSMUSIC PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:

(a)        the Service (including the Content, Music Content and the User-Generated Content;

(b)        your use of or inability to use the Service, or the performance of the Service (including any technical inability to validate your license to use the Service in any circumstances), including the potential unavailability of content you have licensed for term-limited use and is no longer available for the renewal of that or another term;

(c)        any action taken in connection with an investigation by PlusMusic Parties or law enforcement authorities regarding your access to or use of the Service;

(d)        any action taken in connection with copyright or other intellectual property owners or other rights owners;

(e)        any injury or damages you sustain directly or indirectly as a result of your use of the Service or any Music Content;

(f)         any errors or omissions in the Service’s technical operation; or

(g)        any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if PlusMusic Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).  Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.  

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PLUSMUSIC PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID PLUSMUSIC TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

15.        UPDATES TO TERMS

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission).  The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page and the email you associated with your Account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice.  You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.

16.        GENERAL PROVISIONS

Indemnity.  You agree to, and you hereby, defend, indemnify, and hold PlusMusic Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any PlusMusic Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your Music Content and User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) PlusMusic Parties’ use of the information or content that you submit to us (including your User-Generated Content and Music Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by PlusMusic Parties in the defense of any Claims and Losses.  Notwithstanding the foregoing, PlusMusic Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  PlusMusicParties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a PlusMusic Party.

Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation”.  The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

Communications.  As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  

Investigations; Cooperation with Law Enforcement; Termination; Survival.  PlusMusic reserves the right, without limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by PlusMusic in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to PlusMusic under these Terms or any Additional Terms.  Upon suspension or termination of your access to the Service, or upon notice from PlusMusic, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.  The provisions of these Terms and any Additional Terms (including the terms applicable to Music Content and User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to PlusMusic in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

Assignment.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of PlusMusic.  

No Waiver.  Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or PlusMusic in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  For avoidance of doubt, nothing herein shall be construed to restrict PlusMusic’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.

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