Last updated: October, 17th 2022
Welcome! Please take a moment to scroll down and read these Terms of Use.
These Terms of Use (“Terms”) state the terms and conditions under which you may access and use the website operated by Tune Media Inc. (“Hearo,”“HEARO,”“tune.fm”, “TUNE,”“TUNE.FM,”“we”or “us”) located at www.tune.fm as well as via our APIsor mobile App (the “Platform”), and any other software, tools, features, or functionalities provided on or in connection with our services and/or the tune.fm music marketplace available through (and including) the Platform(collectively, the “Service”
Please read these Terms of Use carefully. THESE TERMS OF USE CREATE AN ENFORCEABLE CONTRACT THAT GOVERNS YOUR USE OF THIS SITE AND THE SERVICE AND ALL RELATED CONTENT AND SERVICES. BY CLICKING “I AGREE”OR OTHERWISE ACCESSING OR USING THE SITE OR THE SERVICE, YOU AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 30.IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU ARE NOT GRANTED PERMISSION TO USE THE SITE OR THE SERVICE
1. The Service.
The Service is an online marketplace platform that enables (a) registered users (“Users”) to access, consume and purchase NFTs and various musical and other media content, participate in the tune.fm community, and receive a variety of related services and content, and (b) musical artists (including individual artists, groups, duos, bands, and entities) (“Artists”) to: (i) market and promote sound recordings that they have uploaded or otherwise submitted to the Service (“Songs”); (ii) stream and otherwise distribute the Songs toUsers, using the tools and features which may be made available by Hearo through the Service, in exchange for Jam Tokens (as set forth in Section 7below); and (iii) access a suite of tools to create, mint, purchase and sell certain limited digital content, including NFTson public blockchains/hashgraphs.[“NFT”in these Terms means a non-fungible token or similar digital item implemented on a distributed ledger technology (such Hedera hashgraph).]The Service includes other features, services,and content available on the Platform or through the Service and any other means ofdistributing or accessing the Songs that may,from time to time,be made available through the Service. YOU UNDERSTAND THAT ALL SONGS ARE BEING OFFERED TO YOU DIRECTLY FROM THE APPLICABLE ARTIST AND THAT THE SERVICE IS MERELY A PLATFORM TO ASSIST ARTISTS INMARKET, PROMOTE, STREAM AND OTHERWISE DISTRIBUTE THEIR SONGS.
This Platformand the Service contain various information and content, such as data, text, graphics, news, reports, photos, videos, artwork, messages, comments, and other materials provided by or on behalf of HEARO (the “HEARO Content”), Users (the “User Content”), Artists (the “Artist Content”), which Artist Content includes Songs uploaded by or on behalf of Artist, and NFTs owned by Artists (butnot owned Users). (The HEARO Content, the User Content, the Artist Content,and NFTs may be referred to herein collectively as the “PlatformContent”).
We reserve the right to amend these Terms of Use at any time without notice. If we make material changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Platform, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Platformafter we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Platform
2. Eligibility.
In order to use the Service, you need to be 13 years of age or older and not have been previously barred from the Service for violating this Agreement or any other agreement with Hearo. In addition, to upload music to the Platform, you must be 18 years of age or older (or the applicable age of majority in your jurisdiction, if other than 18) and have the power to enter a binding contract with us and not be barred from doing so under any applicable laws.
3. Registration –User / Artist Accounts
User Accounts. In order to use the Service, you must create a user account (“User Account”), and Hearo will create a digital wallet for you (the “Digital Wallet”). All JAM Tokens earned through the Service will be deposited into your Digital Wallet, and JAM Tokens willbe deducted from your wallet to pay any applicable Fees (as defined in Section 7below) you incur or as otherwise provided in these Terms. You must provide accurate account information and promptly update this information if it changes. Users will be responsible for obtaining internet connections and other third-party software and services necessary to access the Platform. Hearois under no obligation to accept anyone as a Userto the Service, and it may accept or reject any applicant seeking registration as a Userin its sole and absolute discretion. Each User Accountcan only be used by one User
Artist Accounts. Prior to uploading any Songs or creating any NFTs, each Artist is required to create an account and provide Hearo with a physical mailing address. Hearo will create a Digital Wallet for each, and all JAM Tokens earned through the Service (whether from the Songs, sale of NFTs,or as a User of the Service) will be deposited into Artist’s Digital Wallet. Artist must provide accurate account information and promptly update this information if it changes. Artist must also maintain the security of Artist’s account and promptly notify Hearo if Artist discovers or suspectssomeone has accessed Artist’s account or Digital Wallet without permission. If Artist permits others to use Artist account credentials, Artist is responsible for the activities of such users that occur in connection with Artist’s account.
From time to time, Hearo may require you to provide additional information and documents in certain circumstances, such as at the request of any government authorityor as any applicable law or regulation dictates(e.g., “know your customer” standards) or to investigate a potential violation of these Terms.In such cases, Hearo, in its sole discretion, may disable your Account and block your ability to access the Service until such additional information and documents are processed by tune.fm. If you do not provide complete and accurate information in response to such a request, tune.fm may refuse to restore your access to the Service.
Your access and use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service,or other actions that tune.fm, in its sole discretion, may elect to take
You are solely responsible for maintaining the confidentiality and security of your username and passwordand for any use, misuse,or communications entered through the Platformusing your Account. You will promptly inform Hearo if you discover or suspect that someone has improperly accessed your account or if there is otherwise any need to deactivate your account credentials. We reserve the right to delete your Accountor terminate your access to the Platformand/or the Service in our sole and reasonable discretion at any time and for any reason
4. User Content-Rules, Restrictions,and License Grant.
Users access the Service through their User Accounts and may create various “pages,”post User Content(including recommendations and reviews), “fan”bands and musical groups, and access various other features of the Service. User Contentincludes media owned by the Users,which may be uploadedon their “profile pages”for viewing, listening or other consumption as may be permitted by the Service. You understand and agree by uploading such content, you agree to the terms and conditions in these Terms. You further understand and agree that all Artist Content and other User Contentyou encounter on the Service is provided and made available to you by such other Users, and Hearo is not responsible in any manner for any Songs or other User Contenton the Service. Subject to the licenses you grant to Hearo, Artistsand its Users, in these Termsor otherwise, you retain all rights in and to your User Content, as between you and Hearo.
In addition to the licenses granted elsewhere in these Terms, you grant Hearo a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable right and licenseto reproduce, distribute, publish, stream, excerpt, modify, adapt, create derivative works from, publicly perform, publicly display, and otherwise use and exploit your User Content, and any name, username or likeness provided in connection with your User Content, in and in connection with the Platform, in all media formats and channels now known or later developed without compensation to you.Use of any media or content yousubmit will be subject to these Terms. When you post or otherwise share User Contenton or through our Platform, you understand that your User Contentand any associated information (such as your username or profile photo) may be visible to others, consistent with any applicable account settings.
You may not create, upload, post, submit, store or share any User Contentthat violates these Terms or for which you do not have all the rights necessary to grant the rights granted in these Terms. You represent and warrant that your User Content, and the use of such content as permitted by these Terms, does not and will not violate any rights of, or cause injury to, any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may do so at our option, and we may delete or remove User Contentat any time, and for any reason or for no reason, with or without notice.
5. Artist Content-Rules, Restrictionsand License Grant.
(a)Content. Subject to these Terms, Artists may upload, or authorize others to upload on their behalf: (a)Songs, in a lossless file format, to Artist’s profile page or Artist’s group page on the Site (the “Artist Pages”), which Songs will be hosted and stored on the Platform at Artist’s direction; and (b) other Artist content, such as artwork, logos, photographs, lyrics, descriptions, comments, bios, text, and metadata, which are uploaded to the Site (the “Additional Content”). The Songs, the Additional Content and any minted but unsold NFTs will together be referred to as the “Artist Content.”The uploaded Artist Content may be displayed on the applicable page and made available to Users through the Service indefinitely unless Artist removes a Song or this Agreement is terminated as set forth herein, provided, however, that either party may remove any or all Artist Content from the Service at any time in its sole discretion.
(b)Rules. Artist agrees not to upload or post any Songs or other Artist Content: (a) that promote or incite hatred, harassment, bullying, or violence, (b) that contain obscenities or any sexually explicit, defamatory, discriminatory, abusive, threatening, hateful, excessively violent, infringing,or other patently offensive or illegal content, or (c) that infringe upon or violate the rights of any third party of the terms of this Agreement or the Platform Terms. Hearo has the right, but not the obligation to review the Artist Content prior to andafter uploading, including, but not limited to, comparing the Artist Content against third-party databases of copyrighted music for the purpose of identifying infringing materials. In addition, although Hearo has no obligation to screen, monitor, or review Artist Content, Hearo has the right, in its sole and absolute discretion, to review, remove or prevent the upload of any Artist Content to the Platform at any time, with or without notice.
(c)Restrictions.
(i) Artist shall not, and not permit its employees, officers, directors, members, managers, partners, agents, third-party service providers, or other designated persons (its Representatives”) to take any of the following actions: (i) upload any Song in which Artist does not own or control all rightsin the Song, including all rights in the underlying musical composition (i.e.,no cover songs); (ii) upload any Artist Content that is unlawful, infringes or violates the rights or any third party, or otherwise violates the terms of this Agreement or (iii) use the Platform or the Service in violation of any applicable law or regulation
(ii) Artist acknowledges that it may be necessary or advisable under applicable law for the Company to require certain lockups, dribble out rules, or other features to apply to JAM Tokens. Artist hereby agrees that the Company may apply such lockups, dribble out rules, or other features to JAM Tokens received by Artist as deemed necessary or advisable in the sole and absolute discretion of the Company under then applicable law.
(d) License Grant. (i) Artist hereby grants to Hearo, and Hearo hereby accepts, a worldwide, non-exclusive, sublicensable, royalty-free right and licenseduring the Term to reproduce, distribute, publicly perform, publicly display, adapt, reformat, encode, excerpt, edit, compress, analyze, and otherwise use and exploit the Artist Content as necessary or appropriate to (i) host and display the Artist Content on the Platform; (ii) offer and operate the Service; (iii) enable the streaming and other licensing and distribution of Songs to Users as facilitated through the Service on behalf of Artist, including the right to grant sublicenses, as necessary, to allow Users to use and exploit the Songs in accordance with the uses made available through the Service onthe terms and conditions set forth in the Platform Terms; (iv) demonstrate, market, and promote the Artist Content, the Platform, and the Service, and (v) create metadata, improve the Service and the search, discovery and recommendation features relating to the Artist Content, and for other internal purposes such as research, development, analysis, training, and machine learning. To the fullest extent permitted by applicable law, Artist specifically waives any moral rights with respect to any Artist Content. Artist grants Hearo the right to use the name, likeness, and biographical information of any individual Artist, or any member of a duo, band or group, in connection with the Artist Content and the promotion thereof and of the Service. Hearo may also useany Artist trademarks relating to the Artist Content in order to refer to and describe the Artist and the Artist Content, including in promotional materials.
(ii) All rights in the Platform, the Service, and the Hearo Content (excluding the Artist Content) belong solely to Hearo, and no Intellectual Property Rights of any kind are assigned or transferred to Artist under this Agreement. Artist shall have no right to use the Service, the Platform,or any information or materials on the Platform or made available through the Service, including but not limited to data, text, graphics, photographs, reports, music, and other materials (collectively the “Hearo Content”) for any purpose other than as set forth herein or in the Platform Terms.
(iii) For purposes ofthis Section 5, “Intellectual Property Rights” means all inventions and/or works and any and all rights under USand/or foreign patents, trade secrets, know‑how, copyrights, trademarks, and other industrial or intangible property rights of a similar nature worldwide; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions, andcontinuations-in-part of such applications; and all rights under corrections, reissues, reexaminations, patents of addition, extensions, and renewals of any such grant, registration, and/or right.
6. Prohibited Conduct and Content.
You, whether as an Artistand/or User,agree that you are solely responsible for your conduct while on the Platform, and you agree that you will not do any of the following in connection with the Platform or its users:
▪ Violate any applicable law, contract, intellectual property right or other third-party rights;
▪ Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
▪ Use or attempt to use another User’s account without authorization from that Userand Hearo;
▪ Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell, resell or commercially use our Platform/Service, other than to distribute your music under theseTerms;
▪ Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Platform/Service, except as expressly permitted by us or our licensors;
▪ Modify our Platform, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Platform;
▪ Use our Platform/Service other than for its intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Platform/Service or that could damage, disable, overburden or impair the functioning of our Platformin any manner;
▪ Reverse engineer any aspect of our Platform/Service or otherwise attempt to discover its source code, underlying ideas, algorithms, file formats, or interface protocols or bypass or circumvent measures employed to prevent or limit access to anypart of our Platform;
▪ Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Platform;
▪ Develop or use any applications that interact with our Platform/Service without our prior written consent;
▪ Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Bypass or ignore instructions contained in our robots.txt file;
▪ Remove or modify any proprietary marking or restrictive legends placed on the Platform, the Service, or the PlatformContent;
▪ Use our Platformfor any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms or any applicable law, rule or regulation;
▪ Use the Service ordata collected from our Service for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
▪ Use the Platform/Service for money laundering, terrorist financing, or other illicit finance;
▪ Use the Platform/Service from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries;
▪ Use the Platform/Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, selling, or buying securities, commodities, options, or debt instruments;
▪ Use the Platform/Service to create, sell, or buy NFTs or other items that give owners rights to participate in an ICO or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
▪ Use the Platform/Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
▪ Use the Platform/Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
▪ Infringe or violate the intellectual property rights or any other rights of others;
▪ Create or display illegal content, such as content that may involve child sexual exploitation;
▪ Create or display NFTs or other items that promote suicide or self-harm, incite hate or violence against others, or doxes another individual;
▪ Use the Platform/Service for any illegal or unauthorized purpose, including creating or displaying illegal content, such as content that may involve child sexual exploitation, or encouraging or promoting any activity that violates the Terms of Service;or
▪ Use the Platform/Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service
You may not create, post, store or share any User Contentthat:
▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
▪ Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
▪ May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
▪ Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
▪ Impersonates, or misrepresents your affiliation with, any person or entity;
▪ Contains any unsolicited promotions, political campaigning, advertising or solicitations;
▪ Is confidential or that you otherwise do not have the right to disclose;
▪ Contains any private or personal information of a third party without such third party’s consent;
▪ Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content;or
▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Platform, or may expose Hearo or others to any harm or liability of any type.
Enforcement of this Section 6is solely at Hearo’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 6does not create any private right of action on the part of any third party or any reasonable expectation that the Platformwill not contain any content that is prohibited by such rules.
7. User Fees; JAM Tokens.
You are not required to pay a fee in order to register as a User, but there are fees associated with accessing Songs and other products and services through the Service, which fees are payable in JAM Tokens as indicated on the Platform. You may receive JAM Tokens for creating a User Account, in accordance with the terms and conditions applicable at the time you create your User Account, and you may also have opportunities to earn JAM Tokens by taking various actions from time to time through the Service as described on the Platform, subject to any applicable terms and conditions. For eligible purchasers, JAM Tokens may be purchased through a designated third-party service provider who will assist us in facilitating your purchase. However, until further notice, Users located in the United States will not be able to purchase JAM Tokens.
For Users who are eligible to purchase JAM Tokens, you will be required to provide a valid credit card number when you want to purchase JAM Tokens. You represent and warrant that you are an authorized user of such credit card, and you agree to pay all charges resulting from purchases of JAM Tokens. Purchases of JAM Tokens may be subject to transaction and otherfees charged to Users by such service provider (the “Token Service Fees”), and Hearo is not responsible or liable for such Token Service Fees. All purchases of JAM Tokens are exclusive of any applicable sales or other taxes and you are responsible for payment of any applicable state, local and city taxes. JAM Tokens may be used for accessing and purchasing various products and services that may be made available through the Platform or Service, but you understand and agree that (a) you may not have the right to withdraw funds from your account, use JAM Tokens for things outsideof the Service, or to convert JAM Tokens into USdollars or other crypto or fiat currencies, and (b) the Company may apply lockups, dribble out rules, or other features to JAM Tokens received by you as deemed necessary or advisable in the sole and absolute discretion of the Company under then applicable law.
8. Artist Fees, Royalties, and Commission
8.1 Artist Fees
(a)The number of JAM Tokens to be paid by Users for streaming an Artist Contentwill be set forth in the Terms herein and on the Platform(the “Streaming Fees”) and may be changed from time to time by Hearo atits sole discretion.
(b)To the extent these features are made available on the Platform, Artist may, at its option: (i) offer the first stream of the Song without charge; (ii) set the maximum amount of Streaming Feesto be paid for each Song, after which the User may access unlimited streams of the Song or download theSong without further charge; and (iii) permit the Song to be downloaded by Users for a fee (in JAM Tokens) determined by Artist (the “Download Fee”); The Streaming Fees and the Download Fees together will be referred to as the “Artist Fees.”
(c)Artists may also use their JAM Tokens (up to a budget established by Artist) to pay rewards to Users for their first stream of one or more of their Songs (“JAM Rewards”). When Users redeem these JAM Rewards, the applicable JAM Tokens will be deducted from Artist’s Digital Wallet.
8.2 RoyaltyPayments
(a)Royalty Payments aremade to Artist or creator of ArtistContent for streaming, downloading, and/or purchasing ArtistContent. The Royalty Paymentsare paid in JAM Tokens and distributed among the Artist and NFT owner in proportion to their ownership rights. The Platform has two types of Royalty Payments: Streaming Royalty Paymentand Creator Royalty Payment.
(b)Streaming Royalty Paymentsare payments to Artists and NFT owners(through JAM Tokens) each time their music is streamed on the Platform. When an Artist mints an NFT of their digitalcontent, they can incorporate a fraction of the Artist Fees as a part of the NFT’s ownership and offer the remaining part of ownership to the NFTpurchaser. For example, if anArtist decides to include fifty percent of the Artist Feesas Streaming Royalty Payment, the Artist will receive fifty percent of the JAM Tokens that result fromstreaming, or downloading the NFT fromthe Platform, while the current NFT owner will receive the other fifty percent of these JAM Tokens.
(c)Creator Royalty Paymentsarethe numberof JAM Tokens that original Artist or NFT creator receiveseach time the NFT is sold. When an Artist mints an NFT of their digital content, they can incorporate a percentage of thesale price each time the NFT is sold on the Platform. The Creator Royalty Paymentsare automatically paid out in JAM Tokens to the original Artist on each secondary sale of the Artist Content or the NFT.
8.3 Fees and Commission
(a)Streaming, buying, selling,and transferring NFTs or other licensing may be subject to fees, commissions, royalties,and other charges established from time to time atthe sole discretion of Hearo. On the date of the initial publication of these Terms, Hearo will collect the Artist Fees (in JAM Tokens) from User on behalf of the Artist and remit the applicable Fee(s) tothe Artist, less ten (10%) of the Fee(s) as Hearo’s commission (the “Commission”). Such remittance will occur by crediting the Artist’s Digital Wallet within 2 days after receipt of the Fee(s). Artist is solely responsible for collection of the Artist Fees. At the direction of Artist, Hearo can create multiple Digital Wallets for an Artist and split Artist Fees among such Digital Wallets as designated by Artist through Artist’s account settings (the “Artist Split”). Each member of Artist agrees that the amounts paid to Artist in accordance with the Artist Split designated through Artist’s account will constitute payment in full to Artist and all of its members.
(b)Artist may use funds from the applicable Digital Wallet for Services on the Platform, but Artist shall not have the right to withdraw funds from the applicable Digital Wallet otherwiseor to convert JAM Tokens into USdollars or other crypto or fiat currencies.
9. Copyright; Limited License.
You acknowledge that the Platform, the Service, the HearoContent and their “look and feel” (e.g., text, graphics, images, logos, page headers, buttonicons, and scripts), proprietary content, information and other materials, and all content and other materials contained therein, including, without limitation, the Hearo logo and all designs, text, graphics, pictures, data, software, sound files, other files, and the selection and arrangement thereof are the proprietary property of Hearo, and protected by the USand international copyright and other laws, and you agree not to take any action(s) inconsistent with such ownership interests.
All other third-party trademarks, registered trademarks, and product names mentioned on the Platform and/or the Service or contained in the content linked to or associated with any NFTs displayed on the Platform are the property of their respective owners and may not be copied, imitated orused, in whole or in part, without the permission of the applicable intellectual property rights holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Hearo.
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, non-commercial, personal revocable licenseto access and use our Platformand the Service. If any software, content, or other materials owned by, controlled by, or licensed to us are distributed or made available to you as part of your use of the Service, we hereby grant you a non-commercial, personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and licenseto access and display such software, content, and materials provided to you as part of the Service (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Service as permitted by these Terms, provided that your licensein any content linked to or associated with any NFTs is solely as set forth by the applicable seller or creator of such NFT.
You agree to comply with all intellectual property laws, and except with respect to any Artist Content or User Contentyou own or control, you shall not (a) encumber any interest in, or assert any rights to, the PlatformContent; (b) modify, transmit, participate in the sale or transfer of, or create derivative works based on any PlatformContent, in whole or in part; (c) resell, redistribute, or make any commercial use of the Platform, the Service, or the PlatformContent (other than to promote and distribute your Songs); or (d) use the Platform, the Service, or the PlatformContent other than for its intended purpose.
With respect to Songspurchased, upon payment of the applicable fee (as set forth on the Platformat the time of purchase), you will be granted a nonexclusive, nontransferable, non-sublicensable, licenseto access the Song in accordance with the licenseterms indicated on the Platformfor such Song and the rights you select. You may not use or access any PlatformContent, including Songs, except under the specific terms of the applicable license, and subject to the payment of the applicable Fees. All rights not expressly granted herein are reserved exclusively to Hearo or the applicable rightsholder.
10. Third-Party Content and Services.
Hearo helps Usersexplore Songs and NFTs created by Artists and third parties. Hearo does not make any representations or warranties about Artist and/or third-party content visible through our Service, including any content associatedwith NFTs displayed on the Service. You are responsiblefor verifying the legitimacy, authenticity, and legality of NFTs that you purchase. We also cannot guarantee that any Songs or NFTs visible on Hearo will always remain visible and/or available to be bought, sold, or transferred.
NFTs may be subject to separate terms dictated by the Artist or User owning such NFT relating to the use of the NFT content and benefits associated with a given NFT (“Purchase Terms”). For example, when you click to get more details about any of the NFTs visible on Hearo, you may notice a third-party link to the creator’s website. Such website may include Purchase Terms governing the use of the NFT that you will be required to comply with. Hearo is not a party to any such Purchase Terms, which are solely between the buyer and the seller. The buyer and seller are entirely responsible for communicating, promulgating, agreeing to, and enforcing Purchase Terms. You are solely responsible for reviewing such Purchase Terms.
The Service may also contain links or functionality to access or use third-party websites (“Third-Party Sites”) and applications (“Third-Party Applications”) or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties (“Third-Party Materials”). When you click on a link to, or access and use, a Third-Party Siteor Third-Party Application, though we may not warn you that you have left our Service, you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Sites, Third-Party Applications, and Third-Party Materials are not under the control of Hearo, and may be “open” applications for which no recourse is possible. Hearo is not responsible or liable for any Third-Party Sites, Third-Party Applications, and Third-Party Materials. Hearo provides links to these Third-Party Sitesand Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Sitesor Third-Party Applications, or their products or services or associated Third-Party Materials. You use all links in Third-Party Sites, Third-Party Applications, and Third-Party Materials at your ownrisk.
THE USER CONTENTAND THE ARTIST CONTENT ARE PROVIDED TO THE SITE BY THIRD PARTY USERS AND ARTISTS. HEARO MAKES NO REPRESENTATION OR WARRANTY OR ANY KIND REGARDING SUCH USER CONTENTAND ARTIST CONTENT, INCLUDING THE OWNERSHIP AND NONINFRINGEMENT THEREOF OR THE INTELLECTUAL PROPERTY RIGHTS THEREIN, OR THE RIGHT OF SUCH ARTISTS AND USERS TO PROVIDE, DISCLOSE OR SELL SUCH USER CONTENTOR ARTIST CONTENT VIA THIS SITE OR OTHERWISE. YOU ASSUME ANY AND ALL RISK AND LIABILITY ASSOCIATED WITH THE USER CONTENTAND THE ARTIST CONTENT YOU ENCOUNTER. Any use of the Platform, the Service, or the PlatformContent other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the licensegranted herein and violate our intellectual property rights. This licenseis revocable at any time.
11. NFT Marketplace.
(a)Buying and Selling Artist Content. Hearo allows Users to buy and sell NFTs and other Artist Content to other Users through the Service. An Artist has the right to set the initial price for Artist Content,and each Userhas the right to set the resale price for subsequent sales. Hearo collects certain service fees in connection with buying andselling Artist Content through our Service. Hearo reserves the right to set all prices for its service fees. All payments for Artist Content are final and not refundable or exchangeable, except as required by applicable law.
(b)License to NFTs and Other Artist Content. If you are an Artist selling Artist Content through the Service, then you grant to the User purchasing such Artist Content, a limited, perpetual licenseto publicly display, perform, distribute and reproduce the Artist Content solely for the User’s personal, non-commercial use (except as expressly permitted in these Terms). If you are a User purchasing Artist Content through the Service, then your purchase of any Artist Content, including any NFT, through the Service results in a limited licensegrant to you and your purchase of Artist Content does not give you the right to publicly display, perform, distribute, sell or otherwise reproduce the Artist Content for any commercial purpose (i.e., you may not intentionally or purposefully monetize the Artist Content (except in connection with a sale of such Artist Content)). IF YOU ARE A USERPURCHASING ARTIST CONTENT, THEN YOU FURTHER AGREE THAT YOU ARE NOT RECEIVING ANY COPYRIGHT INTEREST IN THE ARTIST CONTENT. Any commercial use or exploitation of the Artist Content could subject you to claims of copyright infringement. If you are an Artist or a User selling any Artist Content, then you agree that the terms of this Section 11will govern the initial sale of any Artist Content and any subsequent sale of such Artist Content. If you sell any Artist Content through the Service, you further agree that you will not have any claims against Hearo for any breach of Section 11by a User. If you purchase any Artist Content, then you agree to use the Artist Content in accordance with this Section 11. IF YOU PURCHASE ANY ARTIST CONTENT THROUGH THE SERVICE, YOU HEREBY AGREE TO HOLD HEARO AND THE ARTIST HARMLESS FROM AND AGAINST ANY AND ALL VIOLATIONS OR BREACHES OF THIS Section 6
(c)Artist Terms
(i)You agree that you are responsible for setting the price for any Artist Content that you make available via the Service. Hearo reserves the right to set all prices for its service fees. We will pay you a percentage of the fees collected in connection with sale and resale of your Artist Content subject to the deduction of applicable service fees (“Artist Revenue”). More information on the Artist Revenue can be found on our website.
(ii)You agree that you have no obligation to take any action to promote Artist Content,and there is no guarantee that any such activities will increase the value of Artist Content, and the royalty payments accordingly, since the popularity of the Artist Content is based on algorithms created and utilized by the Platform. As a result, Hearo cannot ensure that any Artist Content will generate royalty payments.
(iii)You may be subject to additional Artist Terms from time to time, as defined below or on the Platform
(d)User Terms
(i)If you buy an NFT on the Platform, and unless stated otherwise in the specific NFT conditions, you do not acquire any intellectual property rights in the ArtistContent, but instead you receive ownership of the NFT. You have the right to earn royalty and resell it to another user if you wish.
(ii)The original Artist of the ArtistContent does not give up any copyright in the ArtistContent, meaning that you cannot prevent the original Artist from using the ArtistContent for further commercial works;and
(iii)Your right to use the ArtistContent for commercial purposes may besubject to original Artist’s approval(e)Artist/User Disputes.
HEARO WILL NOT BE A PARTY TO ANY DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN ARTIST AND/OR USERS. YOU AGREE TO RESOLVE ALL SUCH DISPUTES WITH ANY OTHER USERS OF THE SERVICE WITHOUT INVOLVING HEARO IN SUCH DISPUTE. THE QUALITY OF THE ARTIST CONTENT PURCHASED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE ARTIST. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING ARTIST CONTENT OFFERED VIA THE SERVICE RESTS SOLELY WITHYOU. IF HEARO IS REQUIRED TO PARTICIPATE IN ANY SUCH DISPUTE, THEN YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS HEARO FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF ANY SUCH DISPUTE.
12. Participant Content; Grant of License.
(a)Definition. “Participant Content” means any and all content that you (as an Artist or a User) display, submit, webcast or otherwise transmit (collectively, “Post”) to the Service, including, without limitation,Artist Content, User Content, text, biographical information, written comments, and Artist Content (including, with respect to any Artist Content, including NFTs, any third-party content included therein, including, without limitation, any audiovisual works, sound recordings or musical works), photos, video, images, audio (including voice), links to third-party websites, and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For clarity, Participant Contentexcludes any Materials and Feedback.
(b)Your Rights to Participant Content. YOU RETAIN THE COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY PARTICIPANT CONTENTTHAT YOU POST TO THE SERVICE SUBJECT TO THE RIGHTS THAT YOU GRANT IN THESE TERMS.
(c)Limited License Grant to Hearo.
▪ By Posting Participant Contentor by otherwise using the Service, you hereby grant to Hearo a non-exclusive, irrevocable, unrestricted, assignable, sublicensable (through multiple tiers), royalty-free right and licensethroughout the universe to reproduce, record, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), transmit, retransmit, make available, create derivative works from, monetize, and otherwise exploit and use (collectively, “Use”) all Participant Contentyou Post to or through the Service by any means and through any media and formats now known or hereafter developed, with or without attribution to you and without any obligation to share any revenues or any consideration or value derived from the Use of your Participant Content, for the purposes of: (i) advertising, marketing, and promoting Hearo, the Service and the availability of content on the Service, including any Participant Contentyou Post to the Service; (ii) displaying and sharing your Participant Content, including NFTs that you own or have the right to display on the Service, to other Users of the Service and on third-party services; (iii) allowing other Users to interact with your Participant Contentaspermitted by these Terms and the functionality of the Service; and (iv) providing the Service as authorized by these Terms.
▪ You further grant Hearo a royalty-free, sublicensable (through multiple tiers) license(but not the obligation) to Use your name, image, voice, and likeness to identify you within or as the source of any of your Participant Content.
▪ You must not Post any Participant Contenton or through the Service or transmit to Hearo any Participant Contentthat you consider to be confidential or proprietary. Any Participant ContentPosted by you to or through the Service or transmitted to Hearo will be considered non-confidential and non-proprietary, and treated as such by Hearo, and may be Used by Hearo in accordance with these Terms without notice to you and without any liability to Hearo.
▪ For the avoidance of doubt, the rights granted in this Section 12(c)include, but are not limited to, the right to: (i) reproduce audio-only and audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; (ii) publicly display audiovisual works; and (iii) publicly perform and communicate to the public audio-only and audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works, in each instance of clauses (i) through (iii) on a royalty-free basis. This means that you are granting Hearo the right to Use your Participant Contentwithout the obligation to pay royalties to any third party, including, but not limited to, an NFT copyright owner, a videogame copyright owner, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of Participant Content.
(d)Specific Rules for Photographs and Images.
If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide licenseto reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The licensecontained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
(e)You Must Have Rights to the Content You Post; Participant ContentRepresentations and Warranties
You must not Post any Participant Contentto the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the Participant Contentyou intend to Post to the Service in compliance with the grant of rights set forth in Section 12(c), including, but not limited to, the name, image, voice, likeness and other personal characteristics of any individual visible or otherwise identifiable in any Participant Contentand any audiovisual works, sound recordings, musical works, or other third-party content embodied in any Participant Content, including, but not limited to, Artist Content. In addition, if you only own the rights in and to a sound recording or an audiovisual work, but not to the underlying musical works embodied in such sound recording or audiovisual work, then you must not Post such sound recording or audiovisual work to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Hearo under these Terms. Upon Hearo’s request, you will provide written confirmation sufficient to show that you are authorized to grant rights in all of the elements of the Participant Contentyou Post to the Service in compliance with the grant of rights set forth in Section 12(c).
(f)Representations and Warranties
You represent and warrant that: (i) you own the Participant ContentPosted by you on the Service or otherwise have the right to grant the licenseset forth in these Terms; (ii) the Posting and Use of your Participant Contenton or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your Participant Content; (iii) the Posting of your Participant Contenton the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; (iv) the Posting of your Participant Contenton the Service does not result in a breach of contract between you and a third party; and (v) your Participant Contentcould not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. You agree to pay all monies owing to any person resulting from Posting your Participant Contenton the Service, including from Hearo’s exercise of the licenseset forth in Section 12(c). If you Post any objectionable content on the Service, then Hearo may –but has no obligation to –take any remedial action that Hearo, in its sole discretion, deems necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your account, removing all of your Participant Contentfrom the Service and/or reporting you to law enforcement or other authorities, either directly or indirectly.
(g)Specific Rules for Musical Works, Sound Recordings, and Recording Artists
If you are a composer or author of a musical work and are affiliated with a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), then you must notify your PRO of the royalty-free licenseyou grant through these Terms to Hearo. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into this Agreement with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label, including any NFTs that embody such new recordings. If you wish to perform a cover song and Post it to the Service, you are responsible for securing all rights in and to the underlying musical work before Posting your recording or performance of such musical work to the Service. Finally, you are solely responsible for clearing the rights to any ambient or background music that is included or audible in any Participant Contentyou Post to the Service.
(h)Through-To-The-Audience Rights.
All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites (defined below) will not have any separate liability to you or any other third party for Participant ContentPosted, viewed, or otherwise used on such External Sites via the Service.
(i)Waiver of Rights to Participant Content.
Except as set forth in a written and signed agreement entered into between you and Hearo in addition to these Terms, by Posting Participant Contentto the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such Participant Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your Participant Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Participant Contentyou Post to the Service.
(j)Disclaimer
WE ARE UNDER NO OBLIGATION TO USE, EDIT OR CONTROL PARTICIPANT CONTENTTHAT YOU OR ANY OTHER USER POSTS ON THE SERVICE AND WILL NOT BE IN ANY WAY RESPONSIBLE OR LIABLE FOR PARTICIPANT CONTENT. WE DO NOT GUARANTEE THAT ANY PARTICIPANT CONTENTIS ACCURATE, TRUTHFUL,OR APPROPRIATE FOR ITS STATED PURPOSE. HEARO MAY, HOWEVER, AT ANY TIME AND WITHOUT PRIOR NOTICE, SCREEN, REMOVE, EDIT, OR BLOCKANY PARTICIPANT CONTENTTHAT,IN OUR SOLE JUDGMENT,VIOLATES THESE TERMS OR IS OTHERWISE OBJECTIONABLE, SUCH AS, WITHOUT LIMITATION, PARTICIPANT CONTENTTHAT HEARO DETERMINES IS OR COULD BE INTERPRETED TO BE ABUSIVE, BIGOTED, DANGEROUS, DEFAMATORY, FALSE,HARASSING, HARMFUL, INFRINGING, MISLEADING, OBSCENE, OFFENSIVE, PORNOGRAPHIC, RACIST, THREATENING, UNLAWFUL, VIOLENT, VULGAR, OR OTHERWISE INAPPROPRIATE. YOU AGREE TO WAIVE, AND DO WAIVE, ANY LEGAL OR EQUITABLE RIGHT OR REMEDY YOU HAVE OR MAY HAVE AGAINSTHEARO WITH RESPECT TO PARTICIPANT CONTENT. YOU AGREE THAT YOUR ADHERENCE TO OR PARTICIPATION IN ANY ACTION, ACTIVITY, COMMAND, GUIDANCE, OR INSTRUCTION IN CONNECTION WITH PARTICIPANT CONTENTIS DONE SO AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR TAKING ALL NECESSARY AND PRUDENT ACTIONS BEFORE ENGAGING IN ANY ACTIVITY THAT HAS A RISK OF HARM, INJURY OR DAMAGE TO ANY PERSON, ANIMAL, OR PROPERTY. YOU FURTHER AGREE THAT YOU WILL HAVE NO RIGHT TO ENFORCE A CLAIM FOR A BREACH OF THESE TERMS AGAINST HEARO FOR ANY OTHER USER’S USE OF YOUR PARTICIPANT CONTENTIN VIOLATION OF THESE TERMS, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, UNAUTHORIZED USES OF NFTs. IF ANOTHER USER VIOLATES ANY RIGHTS YOU HAVE IN YOUR PARTICIPANT CONTENT, YOU AGREE TO SEEK RELIEF FROM SUCH OTHER USER AND NOT HEARO. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH PARTICIPANT CONTENT.
(k)FTC Endorsement Guidelines
Notwithstanding any other provision in these Terms, you represent and warrant that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any Participant Content, including that you will (a) make only accurate statements that represent your genuine experience with any product, good or service and (b) make all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such guides may be amended from time-to-time by the FTC. Follow this link for further information on complying with the FTC’s guidance: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf
(l)Monitoring Content
Hearo does not control and does not have any obligation to monitor: (a) Participant Content, including, without limitation, Artist Content and NFTs; (b) any content made available by third parties; or (c) the use of the Service by its Users. You acknowledge and agree that Hearo reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Hearo chooses to monitor the content, Hearo still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Hearo reserves the right to remove any Participant Contentfrom the Service in Hearo’s sole discretion, without notice, and with no further obligation or liability to any User.
(m)Digital Millennium Copyright Act.
Hearo will take down works in response to Digital Millennium Copyright Act (“DMCA”) takedown notices and/or other intellectual property infringement claims and will terminate a user’s access to the Service if the user is determined to be a repeat infringer. If you believe that your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other intellectual property rights, you may submit written notice to our designated copyright agent at [email protected] For us to process your infringement claim regarding content on the Service, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. If you choose to write to us by e-mail or physical mail instead, your notice must include
▪ Identification of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim is being infringed;
▪ Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., urls) on the Service of the material claimed to be infringing, so that we may locate the material;
▪ Your contact information –at a minimum, your full legal name (not pseudonym) and email address;
▪ A declaration that contains all of the following: 1. A statement that you have a good faith belief that use of thematerial in the manner complained of is not authorized by the intellectual property rights owner, its agent, or the law; 2. A statement that the information in the notice is accurate; and 3. A statement under penalty of perjury that you are authorized to act onbehalf of the intellectual property owner of the intellectual property that is allegedly being infringed.
▪ Your physical or electronic signature (of your full legal name).
Please note that we will forward your notice of intellectual property infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available on Hearo and can also contact you to resolve any dispute.
13. Hearo Trademarks.
HEARO, TUNE.FM and our logos, our product or service names, our slogans, and the look and feel of the Platformare trademarks of Hearo (the “HEARO Trademarks”) and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Other company, product, and service names, logos and other trademarks and service marks used and displayed on this Platformare the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier or otherwise, or to individuals, does not constitute or imply any endorsement, affiliation, sponsorship or recommendation. Nothing on this Platformshould be construed as granting, by implication, estoppel, or otherwise, any licenseor right to use any of the HEAROTrademarks displayed on this Platform, without our prior written permission in each instance. All goodwill generated from the use of the HEARO Trademarks will inure to our benefit.
14. Communication Preferences.
By creating an Account, you consent to receive electronic communications from Hearo (e.g., via email, push notification, text messages, or other types of messages). These communications may include notices about your Account (e.g., transactional information) and are part of your relationship with us. We may also send you promotional communications via email we think will be of interest to you. You understand that you are not required to provide this consent as a condition of using the Service and you may opt out of these communications through the Service or through your mobile device’s operating system (with the possible exception of important service announcements and administrative messages) by following the unsubscribe instructions provided.
15. Text Messaging.
You agree that tune.fm and those acting onour behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, such registering for an account as well as marketing messages, including messages regarding status of an auction. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM TUNE.FM, YOU CAN EMAIL [email protected] OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receivetext messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Service.
16. Repeat Infringer Policy; Copyright Complaints.
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at Hearo’s sole discretion, subscribers and account holders who are deemed to be repeat infringers. Hearo may also at its sole discretion limit access to the Platformand/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe this Platformcontains any content that infringes your copyright, you may notify Hearo’s designated agent as follows:
Designated Agent: Copyright Agent
Address: 1600 Hagys Ford Rd. 2H
Penn Valley, PA 19072
E-Mail Address: [email protected]
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Platformis infringing, you may be liable to Hearo for certain costs and damages.
17. App Terms.
You are responsible for providing the mobile device, wireless service plan, software, Internet connections, and/or other equipment or services that you need to download, install, and use the App. We do not guarantee that the App can be accessed and used onany particular device or with any particular service plan. We do not guarantee that the App or Service will be available in any particular geographic location.
The following terms and conditions apply to you only if you are using the App from the Apple App Store: To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to your use of the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and Hearo, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must complywith the App Store’s applicable terms of use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Hearo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third-party terms of agreement when using the App. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as they relate to your use of the App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
18. Feedback.
You may voluntarily post, submit or otherwise communicate to us, including through the fan button functionality of the Platform, any questions, comments, suggestions, ideas, concepts, techniques, original or creative materials or other information about Hearo, the Platform or the Service (collectively, “Feedback”). By submitting such Feedback, you understand and agree that (a) such Feedback will not be considered confidential or proprietary to you; (b) we may use such Feedback for any purpose whatsoever, commercial or otherwise, without acknowledgment, compensation, notice, or other obligation to you; and (c) you are granting HEARO a perpetual, royalty-free and irrevocable right and licenseto use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell and otherwise exploit such Feedback, in any manner or media in Hearo’s sole discretion. If you do not agree with these terms and conditions, you should not provide any Feedback. Feedback
19. Links to Other Web Platforms.
This Platformmay periodically provide links to Third-Party Sitesas well as other websites operated by HEARO (“Other HEARO Sites”). This Agreement governs only this Platformand not any Third-Party Sitesor Other HEARO Sites. Our decision to link to a Third-Party Siteis not an endorsement of the content or services in that linked Third Party Platform. If you decide to access linkedThird-Party Sites, you do so at your own risk. You should direct any concerns regarding any Third-Party Sitesto the administrator of the applicable Third-Party Site. We also prohibit the use of any links to the Platformfrom any other websites unless establishment of such a link is approved in advance by us in writing.
20. Advertisements and Promotions; Third-Party Products and Services.
Hearo may run advertisements and promotions from third parties on the Platform or may otherwise provide information aboutor links to third-party products or services on the Platform. Hearo does not endorse or make any representations or warranties regarding any third-party products, services, promotions or vendors. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Hearo is not responsible or liable in any manner for any third-party products or services, for any loss or damage of any sort incurred as the result of any products, services, dealings or promotions or as the result of the presence of such third-party advertisers or third-partyinformation on the Platform.
21. Disclaimer ofWarranties.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TUNE.FM EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TUNE.FM (AND ITS SUPPLIERS) MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. TUNE.FM DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TUNE.FM WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE TUNE.FM ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, TUNE.FM CANNOT AND DOESNOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE OR OUR SERVICE PROVIDERS’ SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE TUNE.FM PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD TUNE.FM RESPONSIBLE FOR ANY BREACH OF SECURITY.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS
NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN (E.G., HEDERA HASHGRAPH). ANY TRANSFERS OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN (E.G., HEDERA). TUNE.FM AND/OR ANY OTHER TUNE.FM PARTY CANNOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS ORUNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
NO TUNE.FM PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NO TUNE.FM PARTY IS RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
Some jurisdictions do not allow the exclusion of implied warranties in contracts with consumers, so the above exclusion may not apply to you.
22. Assumption of Risk for buying and selling Artist Content or NFTs.
You accept and acknowledge:
▪ The value of an NFTs is subjective. Prices of NFTs are subject to volatility and fluctuations in the price of cryptocurrency can also materially and adversely affect NFT prices. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money.
▪ A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility of NFTs.
▪ The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of NFTs.
▪ You are solely responsible for determining what, if any, taxes apply to your transactions. Hearo is not responsible for determining the taxes that apply to your NFTs.
▪ There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or otherwise interact with any NFTs or accounts/collections.
▪ We do not control the public blockchains that you are interacting with and we do not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains. Additionally, blockchain transactions are irreversible and Hearo has no ability to reverse any transactions on the blockchain.
▪ There are risks associated with using Internet and blockchain based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your third-party wallet or Account. You accept and acknowledge that Hearo will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Service or any Blockchain network, however caused.
▪ The Service relies on third-party platforms and/or vendors. If we are unable to maintain a good relationship with such platform providers and/or vendors; if the terms and conditions or pricing of such platform providers and/or vendors change; if we violate or cannot comply with the terms and conditions of such platforms and/or vendors; or if any of such platforms and/or vendors loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service will suffer.
▪ Hearo reserves the right to hide collections, contracts, and items affected by any of these issues or by other issues. Items you purchase may become inaccessible on Hearo. Under no circumstances shall the inability to view items on Hearo or an inability to use the Service in conjunction with the purchase, sale, or transfer of items available on any blockchains serve as grounds for a claim against Hearo.
▪ The Artist Content, and any network with which the Artist Content are interacting may malfunction or may function in unexpected or unintended ways. This may be caused by the Artist Content, other networks, or a number of other causes, some of which are unforeseeable. Any malfunction or unintended function could result in the complete loss of the Artist Content.
▪ Hackers or other groups or organizations may attempt to interfere with Hearo, the Artist Contentand/or your digital wallet in any number of ways, including denial of service attacks, Sybil attacks, spoofing, smurfing, malware attacks, or consensus-based attacks. There is a risk that the Artist Contentand the technology infrastructure may include security weaknesses or bugs, which may interfere with the use, or cause the complete loss, of the Artist Content.
▪ If you have a dispute with one or more users, YOU RELEASE US FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
23. Limitation of Liability; Release.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL THE HEARO PARTIES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF THE HEARO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) IN NO EVENT SHALL THE HEARO PARTIES LIABILITY ARISING UNDER THESE TERMS OF USE OR RELATING TO THE SITE, THE SERVICE OR THE SITE CONTENT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE GREATER OF (1) THE FEES ACTUALLY PAID BY USER FOR THE SERVICE OR THE SITE CONTENT THAT GIVES RISE TO THE CLAIM, OR (2) ONE HUNDRED DOLLARS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU. THE REMEDIES PROVIDED TO YOU IN THESE TERMS OF USE ARE EXCLUSIVE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THIS SITE, THE SERVICE OR THE SITE CONTENT IS TO STOP USING THIS SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE HEARO AND THE HEARO PARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF THIRD PARTIES OR RESULTING FROM A CAUSE BEYOND HEARO’S CONTROL, INCLUDING,
BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES OR OTHER LABOR PROBLEMS, WARS, TERRORIST ACTIVITIES OR GOVERNMENTAL RESTRICTIONS. IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
Indemnification.
By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Hearo, and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns (individually and collectively, the “Hearo Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, content, Songs, NFTs, or content linked to or associated with any Songs or NFTs (b) any Feedback you provide, (c) your violation or breach of any term of these Terms or applicable law, and (d) your violation of the rights of or obligations to a third party, including another user or third-party, and (e) your negligence or willful misconduct. You agree to promptly notify Hearo of any Claims and cooperate with the Hearo Parties in defending such Claims. You further agree that the Hearo Parties shall have control of the defense or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND TUNE.FM.
25. Privacy Policy; Transfer and Processing of Data.
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy tune.fm/privacy-policy. In order for us to provide our Platformand Service, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
26. Modifications tothe Service.
We reserve the right in our sole discretion to modify, suspend, or discontinue, temporarily or permanently, the Service (or any features or parts thereof) at any time and without liability as a result.
27. Modifications of these Terms.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 27, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
28. General Payment Terms.
Certain features of the Service may require you to pay fees. Hearo reserves the right to determine pricing for certain functionality offered via the Service as Hearo may make available or change from time to time in its sole discretion. Before you pay anyfees, you will have an opportunity to review and accept the fees that you will be charged. Hearo, at its sole discretion, may make promotional offers with different features and different pricing to any of Hearo’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms
▪ Authorization. You authorize Hearo and its third-party payment processors to charge all sums for the orders that you make through the Service, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Hearo or its third-party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
▪ Delinquent Accounts. Hearo may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for an applicable order, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
29. Termination.
We reserve the right, in our sole and absolute discretion,to change, restrict, suspend, or terminate these Terms of Use, your access to all or any part of the Platform, the Service and/or the PlatformContent at any time and for any reason, or no reason, without prior notice or liability. We reserve the right tochange, suspend, modify, or discontinue all or any part of this Platform, the Service or the PlatformContent at any time without prior notice or liability. You also have the right to stop using our Platformand the Service at any time upon written notice sent to [email protected]. We are not responsible for any loss or harm related to your inability to access or use our Platform or the Service. Upon termination for any reason, you may not access or use the Platform or the Service.
30. Dispute Resolution; BindingArbitration.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Hearo and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Hearo agree that anydispute arising out of or related to these Terms, the Service, or our Platformis personal to you and Hearo and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Hearo seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Hearo seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Hearo waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms, the Service, or our Platform, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Hearo you agree to first contact Hearo and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Hearo by email at [email protected] The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific reliefsought. Our notice to you will be similar in form to that described above. If you and Hearo cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New Castle County, Delaware unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 30, a “consumer”means a person using the Platformfor personal, family or household purposes. You and Hearo agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim thatthe JAMS Rules are unfair or should not apply for any reason.
You and Hearo agree that these Terms affect interstate commerce and that the enforceability of this Section 30will be substantively and procedurally governed by the Federal Arbitration Act, 9 USC§ 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Hearo, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Hearo agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Hearo will pay the remaining JAMS fees and costs. For any arbitration initiated by Hearo, Hearo will pay all JAMS fees and costs. You and Hearo agree that the state or federal courts of the State of Delaware and the United States sitting in New Castle County, Delaware have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Hearo willnot have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 30by emailing us at [email protected] . In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration.
If any portion of this Section 30is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 30or the parties’ ability to compel arbitrationof any remaining claims on an individual basis pursuant to this Section 30; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 30is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 30will be enforceable.
31. Miscellaneous.
In the event that any portion of these Terms of Use is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms of Use shall remain in full force and effect. The sections of these Terms of Use entitled limitation of liability, indemnification, miscellaneous shall survive the termination of these Terms of Use. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of these Terms of Use. You may not assign these Terms of Use. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms of Use. These Terms of Use and any other agreements between the parties entered into through this Platformshall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles. Except for proceedings commenced by the HEARO Parties to protect its intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federalcourts located in the New Castle County, Delaware. These Terms of Use contain the entire agreement of the parties concerning this Platform, the Service, and the PlatformContent (including Songsand NFTs) and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter. You shall comply with all laws, rules and regulations which are now or hereinafter promulgated by any government authority or agency which govern or apply to the operation and use of the Platform. Without limiting the generality of the foregoing, you expressly agree to comply with such restrictions and not to export or re-export any of the PlatformContent to countries or persons prohibited under the export control laws of the United States. You are prohibited from any use of the Platformthat would constitute an illegal offense, give rise to liability or otherwise violate any applicable local, state, national or international law or regulation. All rights not expressly granted herein are reserved by the HEARO Parties and its licensors. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
Thank you for your cooperation. We hope you find our Platform convenient and fun to use. Questions or comments regarding this Platform, including any reports of non-functioning links, should be submitted using our email address at [email protected], or via USmail to 1600 Hagys Ford Rd., 2H, Penn Valley, PA 19072 . Copyright complaints should not be submitted to this email, but should be reported in accordance with Section 16above.
32. Notice to California Users.
Under California Civil Code Section1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
