PLEASE READ THESE TERMS OF SERVICES (“TERMS”) CAREFULLY. Revenue.fm, Inc. a Delaware corporation (together with our affiliates, “Sounder”, “Company” “we”, or “us”) provides a podcast management platform, including proprietary online services, the website located at: https://sounder.fm (the “Site”), and other software and applications (collectively, the “Sounder Platform”), that provides to podcasters audio management, transcription, in audio search and other services (together with the Sounder Platform, the “Services”).
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE SITE, AND/OR USING THE SOUNDER PLATFORM OR SERVICES, YOU (“USER” OR “YOU”) ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THESE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION OF THE INITIAL TERM AT SOUNDER’S THEN-CURRENT SUBSCRIPTION FEE FOR YOUR SELECTED TIER UNLESS YOU OPT-OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 5.5 BELOW.
PLEASE BE AWARE THAT SECTION 12.1 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE 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 (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIM
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK 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 THESE TERMS.
In addition to these Terms, you may also be required to become a party to other agreements, including (i) our API Agreement located athttps://sounder.fm/legal/terms/api-agreement, and (ii) certain other agreements that may be presented to you with respect to other elements of our service (each of which are a “Separate Agreement”). If there is any conflict between the terms of a Separate Agreement and these Terms, then the Separate Agreement will control with respect to the subject matter of such Separate Agreement.
PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of these Terms available athttps://sounder.fm/legal/terms/terms-of-use. We will also update the “Last Updated” date at the top of these Terms. If we make any material changes, and you have registered with us to create an Account (defined below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to these Terms. Any changes to these Terms will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes will be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to existing users. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS. You should print a copy of these terms or save them to your computer for future reference.
- 1. Accounts and Services2. Access to the Services
- 1.1 Account Creation. To use the Services, you must register for an account (“Account”) on the Site and provide certain information about yourself as prompted by the account registration form. In creating an Account, we ask that you provide complete and accurate information about yourself. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by emailing firstname.lastname@example.org.. Company may suspend or terminate your Account in accordance with Section 10
- 1.2 Page Owners. Subject to Section 1.3 below, a user who registers for an Account is a “Page Owner” and will be the person who is authorized to use any corresponding Account we may provide to the Page Owner in connection with the Services. If you are signing up for the Services on behalf of your employer, your employer will be the Page Owner. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to these Terms. Your Sounder Page can only be associated with one Page Owner. A Page Owner may have multiple Sounder Pages. “Page” means the online podcast page associated with the Account.
- 1.3 Staff Accounts. Based on your Sounder pricing plan, you can create one or more staff accounts (“Staff Accounts”) allowing other people to access the Account. With Staff Accounts, the Page Owner can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information. The Page Owner is responsible and liable for the acts, omissions and defaults arising from use of Staff Accounts in the performance of obligations under these Terms as if they were the Store Owner’s own acts, omissions or defaults. The Page Owner and the users under Staff Accounts are each referred to as a “user”.
- 1.4 Pages. You are responsible for all Pages created under your Account, including any agreements and/or policies between you and users of your Page(s) (“Page Users”) and your Page’s compliance with all applicable laws, rules and regulations. You can remove your Page(s) at any time by terminating your Account.
- 1.5 Domain Names. We may allow you, through the Services, to create a subdomain under the Sounder.fm domain and/or purchase a domain name through which to make available your Page(s). Any hosting of a subdomain or domain by Sounder will be subject to your selecting the appropriate subscription tier for the Services and the payment by you of the applicable subscription fees. Upon purchasing a domain name through Sounder, domain registration will be preset to automatically renew each year so long as your Account remains active. You acknowledge that it is your sole responsibility to deactivate the auto-renewal function should you choose to do so. If you purchased a domain name through the Services, upon termination of your Account your domain will no longer be automatically renewed. Following termination, it will be your sole responsibility to handle all matters related to your domain with the domain provider. You will not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Sounder trademarks and/or variations and misspellings thereof.
- 1.6 Account Responsibilities. You confirm that you are receiving any Services provided by Sounder for your personal and/or business use. You are responsible for all activities that occur under your Account. You are responsible for keeping your password secure. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements or your failure to maintain the security of your Account and password.
- 1.7 Non-Exclusive. We reserve the right to provide the Services to your competitors and make no promise of exclusivity in any particular market segment.
3. Privacy and Confidentiality
- 2.1 Grant of Rights. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited right to access the Site to use the features and functionality of the Services, in each case solely for your own personal or business purposes.
- 2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Service; (b) you will not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you will not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services will be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Service) must be retained on all copies thereof.
- 2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
- 2.4 Ownership. Excluding any User Content that you may provide (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms
4. User Content
- 3.2 Confidentiality. “Confidential Information” will include, but will not be limited to, any and all information associated with a party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. Sounder’s Confidential Information includes all information that you receive relating to us, or to the Services, that is not known to the general public including information related to our security program and practice. Each party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations under these Terms and in accordance with any other obligations in these Terms including this Section 3.2. Each party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such party’s obligations hereunder, who each will treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the parties and the subject matter contained in these Terms of Service, provided that, if legally permitted, the receiving party will give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving party can prove: (i) was already in the public domain, or was already known by or in the possession of the receiving party, at the time of disclosure of such information; (ii) is independently developed by the receiving party without use of or reference to the other party’s Confidential Information, and without breaching any provisions of these Terms; or (iii) is thereafter rightly obtained by the receiving party from a source other than the disclosing party without breaching any provision of these Terms.
5. Purchase Terms
- 4.1 User Content. You are responsible for all content such as podcast content, photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account, whether by Page Owners, Staff Account Users, or Page Users (“User Content”). You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 4.4). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
- 4.2 License to User Content. We do not claim any intellectual property rights over the User Content. All User Content you upload remains yours. Except for the rights granted in this Section 4.2, Sounder is not acquiring any right, title or interest in or to your User Content. You can remove the User Content from your Page(s) at any time by deleting such User Content or deleting your Account. You hereby grant (and you represent and warrant that you have the right to grant) to Sounder a nonexclusive, royalty-free and fully paid, worldwide license to use, edit, modify, aggregate, reproduce, distribute, display, and perform the User Content, and to grant sublicenses of the foregoing rights, in connection with the operation of the Services, the promotion, advertising or marketing of the Services, and the operation of Sounder’s business. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. As it relates to distribution of your podcast to third-parties, Sounder has no direct control over the third party selection or approval process and makes no warranties with regard to the submission of User Content for distribution.
- 4.3 Other Rights. You hereby grant to Sounder the right to allow the Services to use the processor, bandwidth, and storage hardware on your device in order to facilitate the operation of the Services. You represent and warrant that you own or control all device(s) used in connection with your use of the Services and that you can grant the rights in this Section 4.3. You acknowledge and agree that Sounder will have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your Page to host the page and to promote the Services
- 4.4 Acceptable Use Policy.
- (a)You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- (b)In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (v) harass or interfere with any other user’s use and enjoyment of the Services; or (v) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services 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, subject to the parameters set forth in our robots.txt file).
- 4.5 Removal, Take Down and Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 10, and/or reporting you to law enforcement authorities. Without limiting the foregoing, we reserve the right to take your Page(s) offline if we in our sole discretion determine that the subdomain or domain name for your Page violates any trademark or any intellectual property or right of any person.
- 4.6 Feedback. You hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback you provide relating to the Services (“Feedback”). Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
- 5.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Prices for our subscriptions are subject to change without notice. You must provide Company or our Payment Processor(s) (as defined below) with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing Company or our Payment Processor(s) with your credit card number and associated payment information, you agree that Company and/or our Payment Processor(s) is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company and/or our Payment Processor(s) of any change in your billing address or the credit card used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All fees are, unless otherwise stated, non-refundable and stated in US dollars.
- 5.2 Subscriptions. Users set their subscription via their Account by selecting their desired subscription tier. You may modify your subscription tier or cancel your subscription at any time by logging into your dashboard, selecting settings, and then Plans + Billing.
- 5.3 Automatic Renewal. If you have elected to purchase a paid subscription tier via the Services, your subscription will remain in effect until it is cancelled. After your initial subscription period, and again after any subsequent subscription period, your subscription will be automatically renewed on the first day following the end of such period (each a “Renewal Commencement Date”). And continue for an additional equivalent period, at Sounder’s then-current price for such subscription tier. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least 1 day prior to the Renewal Commencement Date (or in the event that you receive a notice from Company that your subscription will be automatically renewed, you will have 3 days from the date of the Company notice), by logging into and going to the [“Change/Cancel Subscription” page of your “Account Settings” page]. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Company and/or our Payment Processor(s) to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Company does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand, and/or (b) you agree that Company and/or our Payment Processor(s) may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic shipment, your next shipment will be sent and charged in accordance with this Section 5.3).
- 5.4 Taxes. Company’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under these Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us 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 5.4, “Sales Tax” will mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- 5.5 Price Changes. Prices for using the Services are subject to change upon 30 days’ notice from Sounder. Such notice may be provided at any time by posting the changes to the Site or the administration menu of your Page via an announcement.
- 5.6 Free Trials and Other Promotions. We may, at our discretion, offer free trials and other promotions for certain users. For example, we may offer students with discounted subscriptions to the Services. Any use of the Services during such free trial or promotional period is subject to these Terms.
- 5.8 Cancellation Period. If you are a consumer, you have a legal right to cancel your subscription until 14 days after the day on which the subscription was entered into. This means that during that period if you change your mind or decide for any other reason that you do not want to continue receiving the Services, you can notify us of your decision to cancel your subscription and receive a refund. To cancel a subscription, you just need to let us know that you have decided to cancel. The easiest way to do this is to email us at email@example.com. If you cancel your subscription, we will refund you the price paid for the subscription
7. Third-Party Links, Applications & Ads; Other Users
- You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of these Terms or the Acceptable Use Policy, (d) your violation of applicable laws, rules or regulations, and (e) your Page(s) and/or your Page Users’ use thereof. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- 7.1 Third-Party Links, Applications & Ads. The Services may contain links to third-party websites and services, applications and/or display advertisements for third parties (collectively, “Third-Party Links, Applications & Ads”). Such Third-Party Links, Applications & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links, Applications & Ads. Company provides access to these Third-Party Links, Applications & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Applications & Ads. You use all Third-Party Links, Applications & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, Applications & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
- 7.2 Open-Source Software. Certain software code incorporated into or distributed with the Services may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 2.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
- 7.3 Other Users. Each Services user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding, and you are solely responsible for, the accuracy, currency, suitability, or quality of any User Content.
9. Limitation on Liability
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE. Except as set forth in Section 9 below, Company will have no liability with respect to any injury, property damage, or death that arises from any activities in connection with your use of the Services, or any advice, information or recommendation contained thereon
10. Term and Termination
- YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
- OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE FEES, IF ANY, PAID BY YOU TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, (B) FIFTY US DOLLARS (U.S. $50), AND (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT
- THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO LIABILITY OF COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; FOR (B) ANY INJURY CAUSED BY ITS FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
- THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
11. Procedure for Making Claims of Copyright Infringement.
- Subject to this Section 10, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. If you want to terminate the Services provided by Company, you may do so by either logging into your account or sending an email to firstname.lastname@example.org along with your account email. Upon termination of the Services by either party for any reason, (1) your Account and right to access and use the Services will terminate immediately; (2) unless otherwise provided in these Terms, you will not be entitled to any refunds of any fees paid, pro rata or otherwise; (3) any outstanding balance owed to Sounder for your use of the Services through the effective date of such termination will immediately become due and payable in full; and (4) your Page(s) will be taken offline. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.1-2.5, 4 –12.
- It is Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright 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 interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright 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 owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: Revenue.fm, Inc., Attn: Copyright Agent, 1153 Bergen Parkway Suite 267, Evergreen, CO 80439, USA.
- 12.1 Dispute Resolution. PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
- (a)Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Company 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). This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
- (b)Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at:
The Corporation Trust Company
209 Orange Street
Wilmington, DE 19801
- The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction
- (c)Authority of Arbitrator. The arbitrator will have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator will 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- (d)Waiver of Jury Trial. YOU AND COMPANY 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 Company are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in subsection 12.1(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- (e)Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Colorado. All other claims will be arbitrated
- (f)30-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 email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company 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 these Terms 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
- (g)Severability. Except as provided in subsection 12.1(e), 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 will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
- (h)Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company
- (i)Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at firstname.lastname@example.org.
- 12.2 International Users. The Services can be accessed from countries around the world and may contain references to a Services that is not available in your country. These references do not imply that Company intends to announce such Services in your country. The Services is controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services is appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- 12.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Denver, Colorado.
- 12.4 Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, 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 these Terms.
- 12.5 Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- 12.6 Electronic Communications. The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- 12.7 Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: Revenue.fm, Inc., c/o Sounder.fm or except as otherwise stated, email address: email@example.com. Such notice will be deemed given when received by Company by letter delivered by nationally recognized overnight delivery Services or first class postage prepaid mail at the above address or, with respect to emails, upon confirmation that the email was received.
- 12.8 Force Majeure. Company will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- 12.9 Entire Agreement. These Terms constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms will be binding upon assignees.
- 12.10 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
- 12.11 Questions, Complaints, Claims. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- 12.12 Consumer Complaints. Company will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- 12.13 Copyright/Trademark Information. Copyright © 2019, Revenue.fm, Inc. All rights reserved. All trademarks, logos and Services marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
- 12.14 International Provisions. The following provisions will apply only if you are located in the countries listed below.
- (a)United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
- (b)Germany. Notwithstanding anything to the contrary in Section 9, Company is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
1. 2 Contact information
1153 Bergen Parkway Suite 267
Evergreen, CO 80439