Welcome and thank you for your interest in Music Unincorporated, Inc. (“Music Unincorporated”, “we”, “us” or “our”). This Terms of Use Agreement (“Terms of Use”, and together with any applicable Supplemental Terms (as defined in Section 1.3) and the Artist Terms (as defined in Section 1.4), the “Agreement”) describes the terms and conditions that apply to your use of: (i) the website located at musicunincorporated.com and its subdomains and any of Music Unincorporated’s other websites on which a link to these Terms of Use appears (collectively, the “Website”); and (ii) the services, content, and other resources available on or enabled via our Website (collectively, with our Website, the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, BROWSING THE WEBSITE, YOU REPRESENT THAT: (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (ii) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (iii) IF YOU ARE A PERSON AGED 18 OR OLDER, YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR, IF YOU, THE PERSON ENTERING INTO THIS AGREEMENT OR ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY, YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT ARE DEEMED TO REFER TO SUCH ENTITY AND INDIVIDUALS USING THE SERVICE ON SUCH ENTITY’S BEHALF. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
YOU MUST BE AT LEAST 13 YEARS OLD TO ACCESS AND USE THE SERVICE. ANY PERSON YOUNGER THAN 18, BUT AGED 13 OR OLDER MUST HAVE SUCH PERSON’S PARENT OR LEGAL GUARDIAN’S PERMISSION TO ACCESS AND USE THE SERVICE. IF YOU, THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, ARE YOUNGER THAN 18, BUT AGED 13 OR OLDER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE CONSENT OF YOUR PARENT OR LEGAL GUARDIAN TO ENTER INTO THIS AGREEMENT OR ACCESS OR USE THE SERVICE. IF YOU ARE A PARENT OR LEGAL GUARDIAN OF A PERSON YOUNGER THAN 18, BUT AGED 13 OR OLDER WHO IS ACCESSING AND USING THE SERVICE, BY ALLOWING SUCH PERSON TO ACCESS AND USE THE SERVICE, YOU ARE SUBJECT TO THE TERMS OF THIS AGREEMENT AND RESPONSIBLE FOR SUCH PERSON’S ACTIVITIES ON THE SERVICE, AND, EXCEPT WHERE EXPRESSLY LIMITED, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT ARE DEEMED TO REFER TO THE PARENT OR GUARDIAN AND THE PERSON YOUNGER THAN 18, BUT AGED 13 OR OLDER WHO IS ACCESSING OR USING THE SERVICE.
SECTION 18 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND MUSIC UNINCORPORATED. AMONG OTHER THINGS, SECTION 18 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 18 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 18 CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 18) WITHIN 30 DAYS IN ACCORDANCE WITH SECTION 18.10: (i) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (ii) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TENNESSEE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Agreement IS subject to change by Music Unincorporated in its sole discretion at any time AS SET FORTH IN SECTION 19.6.
You understand and agree that, as further described below:
- MUSIC UNINCORPORATED IS NOT A PARTY TO ANY RELATIONSHIP BETWEEN USERS, INCLUDING WITH RESPECT TO ANY PURCHASES OR SALES OF TRACKS (AS DEFINED BELOW);
- MUSIC UNINCORPORATED SOLELY PROVIDES THE SERVICE FOR USERS TO TRANSACT, TO ENABLE THE FACILITATION OF PAYMENTS BETWEEN USERS, AND TO ENABLE THE DISTRIBUTION OF PURCHASED TRACKS FROM THE APPLICABLE ARTIST TO FANS; AND
- MUSIC UNINCORPORATED HAS NO CONTROL OVER THE CONTENT OR QUALITY OF ANY TRACKS OR THE CONDUCT OF ANY USERS OF THE SERVICE, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1. USE OF THE SERVICE
The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate agreement between you and Music Unincorporated, your right to access and use the Service, in whole or in part, is subject to this Agreement.
1.1Certain Definitions. For purposes of these Terms:
(a)“Artist” means a user that has registered an “Artist” account on the Service and accesses and uses the Service via such account for the purpose or intention of promoting themselves or promoting, selling, or distributing Tracks;
(b)“Artist Content” means any Tracks and Associated Content that are Made Available by an Artist;
(c)“Associated Content” means copyrightable works or metadata, other than Tracks, Made Available by an Artist in connection with or related to their Tracks or with or related to promoting, identifying, describing, or furthering the Artist as a performer, musician, or artist or their Tracks, including, without limitation, song names, lyrics, musical notations, album artwork, photographs, graphics, and descriptive or biographical text;
(d)“Composition” means any underlying compositions or musical works embodied in a Track;
(e)“Content” means any information, data, copyrightable works, software, musical recordings, sound, photographs, graphics, text, video, messages, song names, lyrics, musical notations, album artwork, photographs, graphics, and descriptive or biographical text, tags and/or other materials accessible through the Service, including Artist Content;
(f)“Excess Amounts” means any amounts in excess of the Purchase Price that a fan offers to pay for the purchase of a Track or a collection of Tracks in the Fan’s sole discretion;
(g)“Fan” means a user who has registered for a “Fan” account on the Service, and is accessing and using the Service via such account or an Artist or unregistered user that uses the Service for the purpose or intent of discovering Artists, music, Tracks (as defined below) or purchasing Tracks;
(h)“Make Available” means upload, post, email, transmit, or otherwise make available to or through the Service, “Making Available” means uploading, posting, emailing, transmitting, or otherwise making available to or through the Service, and “Made Available” means uploaded, posted, emailed, transmitted, or otherwise made available to or through the Service;
(i)“Purchase Price” means the price set by the applicable Artist for the purchase of a Track or a collection of Tracks; and
(j)“Track” means a musical recording Made Available by an Artist for the purpose of selling to or making available for purchase by a Fan or otherwise.
1.2Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental portion of the Service or will be presented to you for your acceptance when you sign up to use the supplemental portion of the Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental portion of the Service.
1.3Artist Terms. Please note that if you are an Artist, your access to and use of the Service is subject to the Artist Terms (the “Artist Terms”). If these Terms of Use are inconsistent with and actually conflict with the Artist Terms, then the Artist Terms control with respect to the subject matter thereof.
1.4Updates. You understand that the Service is evolving. You acknowledge and agree that Music Unincorporated may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Service shall be subject to this Agreement.
2. REGISTRATION
2.1Registering Your Account. In order to access certain features of the Service, you may be required to register an account on the Service (“Account”), have a valid account on a social networking, or other third-party service (a “SNS”) through which you can connect to the Service, as permitted by the Service (each such account, a “Third-Party Account”).
2.2Access Through an SNS. The Service may allow you to link your Account with a Third-Party Account by allowing Music Unincorporated to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Music Unincorporated and/or grant Music Unincorporated access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Music Unincorporated to pay any fees or making Music Unincorporated subject to any usage limitations imposed by such third-party service providers. By granting Music Unincorporated access to any Third-Party Account, you understand that Music Unincorporated may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Service via your Account. Unless otherwise specified in this Agreement, all SNS Content is considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Service. If a Third-Party Account or associated service becomes unavailable, or Music Unincorporated’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Service. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Service. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MUSIC UNINCORPORATED DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Music Unincorporated makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Music Unincorporated is not responsible for any SNS Content.
2.3Registration Data. In registering an account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.4Your Account. You acknowledge and agree that you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Service by minors. You may not share your Account or password with anyone, and you agree to notify Music Unincorporated immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete, or not current, or Music Unincorporated has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete, or not current, Music Unincorporated has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Service if you have been previously removed by Music Unincorporated, or if you have been previously banned from any of the Service.
3. RESPONSIBILITY FOR CONTENT
3.1Types of Content. You acknowledge that Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Music Unincorporated, are entirely responsible for all Content that you Make Available, including Artist Content (to the extent you are an Artist) and SNS Content that you Make Available (“Your Content”), and that other users of the Service, and not Music Unincorporated, are similarly responsible for all Content that they Make Available through the Service (“User Content”).
3.2Your Content. Music Unincorporated does not claim ownership of Your Content. However, when you Make Available any Content on or to the Service, you represent that you own and/or have sufficient rights to grant the license to Your Content, set forth in Section 3.3 (License to Your Content).
3.3License to Your Content. Nothing in this Section 3.3 shall apply with respect to Artist Content. Subject to any applicable Account settings that you select, you grant Music Unincorporated a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of operating and providing the Service to you and to our other users. Please remember that other users may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any area of the Service that is accessible by other users.
3.4Storage. Unless expressly agreed to by Music Unincorporated in writing elsewhere, Music Unincorporated has no obligation to store any of Your Content. Music Unincorporated has no responsibility or liability for: (i) the deletion or accuracy of any Content, including Your Content; (ii) the failure to store, transmit, or receive transmission of Content; or (iii) the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting. You agree that Music Unincorporated retains the right to create reasonable limits on Music Unincorporated’s use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Music Unincorporated in its sole discretion.
4. TERMS APPLICABLE TO FANS
This Section applies to you if, and only if, you are a Fan and, for purposes of this Section, the terms “you” and “your” apply only to Fans. If you are an Artist, please refer to the Artist Terms for the terms relevant to Artists with respect to the matters covered in this Section.
4.1Relationship Solely Between Users. The Service allows you to preview Tracks, purchase Tracks from Artists, download Tracks purchased on the Service and to stream Tracks you have purchased through the Service. When you purchase a Track from an Artist via the Service, the relationship with regard to such purchase is solely between you and that Artist. Music Unincorporated solely provides the Service for the facilitation of such transaction, including the collection of payment and the delivery or making available of the purchased Tracks on the Artist’s behalf. You acknowledge and agree that Music Unincorporated is not a party to any contract for the purchase or sale of any Tracks. You agree that any payments for purchases of Tracks distributed via the Service will only be made via the Service. Music Unincorporated does not: (i) make any covenants, guarantees, or warranties with respect to the quality, existence, content, suitability, or legality of any Tracks; or (ii) verify or confirm any content of any Tracks.
4.2Track Purchases. The Purchase Price for any Tracks you purchase on the Service is set by the Artist. In connection with the purchase of Tracks, you may be permitted to support the applicable Artist by paying Excess Amounts. With the exception of any applicable Sales Tax (as defined below) and service fees that Music Unincorporated may charge, if any, you are not required to pay any amounts other than the Purchase Price unless you offer and agree to pay Excess Amounts via the Service. You are not required to pay any Excess Amounts for Tracks that you do not offer and agree to pay via the Service at the time you purchase a Track. Any Excess Amounts are paid at your sole discretion. By purchasing a Track on the Service, you agree to pay the Purchase Price and any Excess Amounts that you elect. Upon completing a purchase of Tracks, you will receive an email confirmation for such purchase. Purchased Tracks will be delivered and/or made available to you solely via the Service.
4.3All Sales Final, Purchase Issues. All sales of Tracks are final, except where prohibited by law. If there are any issues with the Tracks you have purchased on the Service, please contact Music Unincorporated and we will endeavor to notify the relevant Artist and work with them to resolve your issue. Music Unincorporated does not offer and is under no obligation to provide refunds for any Tracks purchased via the Service.
4.4No Promise of Perpetual Availability. You acknowledge and agree that Tracks you purchase on the Service may not be perpetually available for download by you on the Service and that you may lose access to Tracks you previously purchased through the Service. For instance, you may lose access to Tracks if your or the applicable Artist’s Account or right to access and use the Service is terminated, we are required by law to remove Tracks from the Service, or an Artist chooses to remove Tracks from the Service. We encourage you to promptly download any Tracks you purchase through the Service to your own device so that you will retain control and possession of such Tracks even if we are required to remove the Tracks from the Service or the Artist chooses to remove that content from the Service. Music Unincorporated will not provide you with a refund for any Tracks purchased that have been removed from the Service, unless required by applicable law. You bear all risk from the denial of access to any Tracks purchased through the Service.
4.5Rights to Purchased Tracks. With respect to each Track that you purchase through the Service, you are granted the right, by the applicable Artist, to download that Track to your device via the Service, to play that Track via the Service so long as it is made available on the Service, and to use any copy of the Track downloaded from the Service in the manner permitted by applicable law for the purchaser of a copy of a sound recording without any additional right to reproduce, distribute, publicly perform, broadcast, or create derivative works of any Track or applicable Composition.
4.6Third-Party Service Provider. Music Unincorporated uses Stripe, Inc. and its affiliates (“Stripe”) as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). If you make a purchase on the Service, you will be required to provide your payment details and any additional information required to complete your order directly to Stripe. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consent and authorize Music Unincorporated and Stripe to share any information and payment instructions you provide with Stripe to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by Stripe and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, Stripe uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, Stripe may use third-parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
5. OWNERSHIP
5.1The Service. Except with respect to Your Content, you agree that Music Unincorporated and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Music Unincorporated software). You shall not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any part of the Service.
5.2Trademarks. Music Unincorporated and all related stylizations, graphics, logos, service marks, and trade names used on or with the Service are the trademarks of Music Unincorporated and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks, and trade names that may appear on or in the Service are the property of their respective owners.
5.3Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Service, you hereby expressly permit Music Unincorporated to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content.
5.4Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Music Unincorporated through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Music Unincorporated has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Music Unincorporated a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Music Unincorporated’s business.
6. CERTAIN RESTRICTIONS
As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Music Unincorporated’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of Music Unincorporated; or (viii) interfere with or attempts to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Service by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service.
7. Acceptable Use
7.1You shall not take any action on or through the Service or Make Available any Content that:
(a)is, or is intended to promote actions that are, unlawful, threatening, abusive, harassing, hateful, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
(b)constitutes unauthorized or unsolicited advertising, junk or bulk email; or
(c)involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Music Unincorporated’s prior written consent.
7.2You shall not Make Available any Content that:
(a)contains content constituting, advocating, depicting, embodying, encouraging, inciting, instructing, or promoting:
(i)the exploitation of people in a violent or sexual manner, sexual violence or abuse, child sexual abuse,
(ii)violence or hatred against particular groups, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(iii)acts of terrorism;
(iv)deliberate self-harm or suicide, eating disorder or behaviors associated with an eating disorder; or
(v)illegal activity or a violation of law;
(b)is intended, or is likely to deceive;
(c)infringes or is likely to infringe the intellectual property rights of a third-party; or
(d)contains the name, image, or likeness of another person without that person’s permission.
7.3Reporting. If you identify any User Content that you think violates Sections 7.1 or 7.2 (the “Acceptable Use Policy”) you can report it to us by contacting support@musicunincorporated.com along with the location of the offending User Content and why you believe it violates the Acceptable Use Policy.
7.4Violations. Your violation of the Acceptable Use Policy constitutes a material breach of this Agreement.
8. INVESTIGATIONS, MONITORING, & REMEDIAL ACTION
8.1Investigations and Monitoring. Music Unincorporated may, in its sole discretion, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.
8.2Music Unincorporated’s Remedial Action. Without limiting the foregoing, Music Unincorporated reserves the right to take any action that we deem necessary or appropriate in our sole discretion if we believe that you, including through Your Content, violate this Agreement, including the terms or the spirit of the Acceptable Use Policy, infringe any intellectual property right or other right of any person or entity, threaten the personal safety of users of the Service or the public, or could create liability for Music Unincorporated, including: (i) refusing, removing, or disabling, permanently or temporarily, any of Your Content for any or no reason; (ii) disclosing your identity or other information about you to any third-party who claims that you or Your Content have violated their rights, including their intellectual property rights or their right to privacy; (iii) taking appropriate legal action, including without limitation, instituting legal proceedings against you, making a disclosure or referral to and cooperating with law enforcement or other applicable legal authorities; or (iv) terminating or suspending your access to all or part of the Service. Upon determination of any possible violations by you of any provision of this Agreement, Music Unincorporated, may, at its sole discretion immediately terminate this Agreement, your license to use the Service, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8.3Suspected Criminal Activity. If Music Unincorporated believes that criminal activity has occurred, Music Unincorporated reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Your Content, in Music Unincorporated’s possession in connection with your use of the Service, to: (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement; (iii) respond to any claims that Your Content violates the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of Music Unincorporated, its users or the public, and all enforcement or other government officials, as Music Unincorporated in its sole discretion believes to be necessary or appropriate.
9. INTERACTIONS WITH OTHER USERS
9.1User Responsibility. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service; provided, however, that Music Unincorporated reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that Music Unincorporated will not be responsible for any liability incurred as the result of your interactions with other users.
9.2Content Provided by Other Users. The Service may contain User Content provided by other users. Music Unincorporated is not responsible for and does not control User Content. Music Unincorporated does not approve or endorse, or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users at your own risk.
10. THIRD-PARTY SERVICE
10.1Third-Party Websites, Applications and Ads. The Service may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”), or services or advertisements for third-parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Service and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Music Unincorporated. Music Unincorporated is not responsible for any Third-Party Services. Music Unincorporated provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
10.2Sharing Your Content and Information Through Third-Party Services. Music Unincorporated may provide tools through the Service that enable you to export information, including Your Content, to Third-Party Services, including through features that allow you to link your Account with an SNS account, or through our implementation of third-party buttons (such as “share” buttons). By using one of these tools, you agree that Music Unincorporated may transfer that information to the applicable Third-Party Service. Music Unincorporated is not responsible for any Third-Party Service’s use of your exported information.
11. FEES AND PURCHASE TERMS
11.1Right to Charge Service Fees. Music Unincorporated reserves the right at any time to charge fees for access to and use of any or all features of the Service and to change billing methods on the Service in its sole discretion.
11.2Taxes. The amounts charged on or through the Service, including amounts collected for the purchase of any Tracks or any other fees payable by you to Music Unincorporated under this Agreement, do not include any Sales Tax (defined below) that may be due in connection therewith. If Music Unincorporated determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Music Unincorporated shall collect such Sales Tax in addition to the amounts charged on or through the Service. If any amounts charged on or through the Service are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Music Unincorporated, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Music Unincorporated for any liability or expense Music Unincorporated may incur in connection with such Sales Taxes. Upon Music Unincorporated’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
12. Indemnification
You shall indemnify and hold Music Unincorporated, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (other than Artists) (each, a “Music Unincorporated Party” and collectively, the “Music Unincorporated Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) Your Content; (ii) your use of, or inability to use, the Service; (iii) your violation of this Agreement; (iv) your violation of any rights of another party, including any user; or (v) your violation of any applicable laws, rules or regulations. Music Unincorporated reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Music Unincorporated in asserting any available defenses. This provision does not require you to indemnify any of Music Unincorporated Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.
13. DISCLAIMER OF WARRANTIES
13.1As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE MUSIC UNINCORPORATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE.
(a)THE MUSIC UNINCORPORATED PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); (ii) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
(b)ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c)From time to time, Music Unincorporated may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Music Unincorporated’s sole discretion. The provisions of this section apply with full force to such features or tools.
13.2No Liability for Conduct of Third-Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD-PARTIES ON THE SERVICE, INCLUDING OTHER USERS OR OPERATORS OF EXTERNAL SITES. YOU ACKNOWLEDGE AND AGREE THAT THE MUSIC UNINCORPORATED PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MUSIC UNINCORPORATED PARTIES LIABLE, FOR THE CONDUCT OF THIRD-PARTIES, INCLUDING OTHER USERS OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT MUSIC UNINCORPORATED DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. MUSIC UNINCORPORATED MAKES NO WARRANTY THAT THE GOODS OR SERVICE PROVIDED BY THIRD-PARTIES, INCLUDING ANY TRACKS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
14. LIMITATION OF LIABILITY
14.1Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE MUSIC UNINCORPORATED PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ANY MUSIC UNINCORPORATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD-PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, CONTENT, INFORMATION, OR SERVICE PURCHASED, SOLD, OR OBTAINED THROUGH THE SERVICE; (iii) MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICE; OR (vi) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A MUSIC UNINCORPORATED PARTY FOR: (a) DEATH OR PERSONAL INJURY CAUSED BY A MUSIC UNINCORPORATED PARTY’S NEGLIGENCE; OR (b) ANY INJURY CAUSED BY A MUSIC UNINCORPORATED PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.2Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MUSIC UNINCORPORATED PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (i) THE TOTAL AMOUNT PAID TO Music Unincorporated by you during the THREE-month period prior to the act, omission or occurrence giving rise to such liability; (ii) $100; AND (iii) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A MUSIC UNINCORPORATED PARTY FOR: (a) DEATH OR PERSONAL INJURY CAUSED BY A MUSIC UNINCORPORATED PARTY’S NEGLIGENCE; OR (b) ANY INJURY CAUSED BY A MUSIC UNINCORPORATED PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.3User Content. MUSIC UNINCORPORATED ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
14.4Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14.5Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MUSIC UNINCORPORATED AND YOU.
15. PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
It is Music Unincorporated’s policy to terminate membership privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to Music Unincorporated by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes intellectual property rights infringement, please provide our designated intellectual property agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (2) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (3) a description of the location on the Service of the material that you claim is infringing; (4) your address, telephone number, and email address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf. Contact information for Music Unincorporated’s designated agent for notice of claims of infringement is as follows: Copyright Agent, Music Unincorporated, Inc., 1400 Harwood Dr, Nashville, TN 37206, United States. Email: legal@musicunincorporated.com.
16. TERM AND TERMINATION
16.1Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above), and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
16.2Termination of Service by Music Unincorporated. If you have materially breached any provision of this Agreement, or if Music Unincorporated is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), Music Unincorporated has the right to, immediately and without notice, suspend or terminate any Service provided to you. Music Unincorporated reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations for cause are made in Music Unincorporated’s sole discretion and that Music Unincorporated shall not be liable to you or any third-party for any termination of your Account.
16.3Termination by You. If you want to terminate this Agreement, you may do so by (i) notifying Music Unincorporated at any time; or (ii) closing your Account for the Service. Your notice should be sent, in writing, to Music Unincorporated’s address set forth below.
16.4Effect of Termination. Upon termination of the Agreement, your Account, or the Service your right to use the Service will automatically terminate, and we may delete Your Content associated therewith from our live databases. We may also bar your further use or access to the Service. Music Unincorporated will not have any liability whatsoever to you for any suspension or termination of this Agreement, your Account, or the Service, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of the Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
16.5No Subsequent Registration. If this Agreement is terminated for cause by Music Unincorporated or if your Account or ability to access the Service is discontinued by Music Unincorporated due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you will not attempt to re-register with or access the Service through use of a different member name or otherwise.
17. INTERNATIONAL USERS
The Service is only intended for use in the United States, but may be accessed from countries around the world and may contain references to services and Content that is not available in your country. These references do not imply that Music Unincorporated intends to announce such service or Content in your country. The Service is controlled and offered by Music Unincorporated from its facilities in the United States of America. Music Unincorporated makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
18. ARBITRATION AGREEMENT
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Music Unincorporated and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
18.1Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Music Unincorporated agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Music Unincorporated may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Music Unincorporated may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
18.2Informal Dispute Resolution. There might be instances when a Dispute arises between you and Music Unincorporated. If that occurs, Music Unincorporated is committed to working with you to reach a reasonable resolution. You and Music Unincorporated agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Music Unincorporated therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
18.3The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Music Unincorporated that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@musicunincorporated.com or regular mail to our offices located at 1400 Harwood Dr. Nashville, TN 37206. The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) a description of your Dispute.
18.4The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
18.5Waiver of Jury Trial. YOU AND MUSIC UNINCORPORATED HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Music Unincorporated are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.6Waiver of Class and Other Non-Individualized Relief. YOU AND MUSIC UNINCORPORATED AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 18.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 18.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Music Unincorporated agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Tennessee. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Music Unincorporated from participating in a class-wide settlement of claims.
18.7Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within 60 days after receipt of your Notice, you and Music Unincorporated agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
18.8A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
18.9If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
18.10Unless you and Music Unincorporated otherwise agree, or the Batch Arbitration process discussed in Section 18.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
18.11You and Music Unincorporated agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
18.12Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Tennessee and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within 35 days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 18.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
18.13Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to Section 18.4, including any claim that all or part of Section 18.4 is unenforceable, illegal, void, or voidable, or that such Section 18.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in Section 18.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 18.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
18.14Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Music Unincorporated need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
18.15Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Music Unincorporated agree that in the event that there are 100 or more individual Requests of a substantially similar nature filed against Music Unincorporated by or with the assistance of the same law firm, group of law firms, or organizations, within a 30 day period (or as soon as possible thereafter), the AAA shall: (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
18.16All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Music Unincorporated.
18.17You and Music Unincorporated agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (a) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (b) the adoption of an expedited calendar of the arbitration proceedings.
18.18This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
18.1930-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Music Unincorporated, Inc. 1400 Harwood Dr. Nashville, TN 37206, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
18.20Invalidity, Expiration. Except as provided in Section 18.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Music Unincorporated as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
18.21Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Music Unincorporated makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within 30 days of such change becoming effective by writing to Music Unincorporated at 1400 Harwood Dr. Nashville, TN 37206, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Music Unincorporated will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
19. GENERAL PROVISIONS
19.1Electronic Communications. The communications between you and Music Unincorporated may take place via electronic means, whether you visit the Service or send Music Unincorporated emails, or whether Music Unincorporated posts notices on the Service or communicates with you via email. For contractual purposes, you: (i) consent to receive communications from Music Unincorporated in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Music Unincorporated electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
19.2Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Music Unincorporated’s prior written consent. Music Unincorporated may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
19.3Force Majeure. Music Unincorporated shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
19.4Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: support@musicunincorporated.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
19.5Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
19.6Agreement Updates. When changes are made, Music Unincorporated will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Music Unincorporated may require,you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
19.7Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Music Unincorporated agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Nashville, Tennessee.
19.8Governing Law. ThIS AGREEMENT and any action related thereto will be governed and interpreted by and under the laws of the State of TENNESSEE, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
19.9Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
19.10Notice. Where Music Unincorporated requires that you provide an email address, you are responsible for providing Music Unincorporated with a valid and current email address. In the event that the email address you provide to Music Unincorporated is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Music Unincorporated’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Music Unincorporated at the following address: 1400 Harwood Dr. Nashville, TN 37206. Such notice shall be deemed given when received by Music Unincorporated by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
19.11Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.12Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
19.13Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported: (i) into any United States embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not: (a) 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 (b) listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services, or technology provided by Music Unincorporated are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Music Unincorporated products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
19.14Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.