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www.tune.fm

Terms of Use

Last updated: September, 16th 2019

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 use the website operated by Hearo.fm, Inc. (“Hearo”, “HEARO”, “tune.fm”, “TUNE”, “TUNE.FM”, “we” or “us” ) located at www.tune.fm (the “Site”) and the tune.fm music marketplace service available through the site (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 19. 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 musical artists (including individual artists, groups, duos, bands, and entities) (“Artists”) to: (a) market and promote sound recordings that they have uploaded or otherwise submitted to the Service (“Songs”); and (b) stream and otherwise distribute the Songs to registered users of the Service (“Users”), 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 6 below). The Service includes other features, services and content available on the Site or through the Service and any other means of distributing 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 TO MARKET, PROMOTE, STREAM AND OTHERWISE DISTRIBUTE THEIR SONGS.

This Site and 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”), and Artists (the “Artist Content”), which Artist Content includes Songs uploaded by or on behalf of Artist. (the HEARO Content, the User Content and the Artist Content may be referred to herein collectively as the “Site Content”).

We reserve the right to amend these Terms of Use at any time without notice. If we make materials changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Site, 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 Site after 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 Site.

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 Site, 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. 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 will be deducted from your wallet to pay any applicable Fees (as defined in Section 6 below) 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 Site. HEARO is under no obligation to accept anyone as a User to the Service, and it may accept or reject any applicant seeking registration as a User in its sole and absolute discretion. Each User Account can only be used by one User.

You are solely responsible for maintaining the confidentiality and security of your username and password, as well as for any use, misuse or communications entered through the Site using your User 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 User Account or terminate your access to the Site and/or the Service in our sole and reasonable discretion at any time and for any reason.

4. User Content. 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 Content includes Songs which Users may upload on their “profile pages” for streaming and other distribution as may be permitted by the Service. You understand and agree that your uploading of Songs is subject to the Tune.fm Artist Agreement tune.fm/artist-agreement/ (the “Artist Agreement”), and by uploading Songs, you agree to the terms and conditions of the Artist Agreement. You further understand and agree that all User Content you encounter on the Service is provided and made available to you by the User, and Hearo is not responsible in any manner for any Songs or other User Content on the Service. Subject to the licenses you grant to Hearo and its Users, in these Terms, in the Artist Agreement, or otherwise, you retain all rights in and to your User Content, as between you and Hearo.

In addition to the licenses granted in the Artist Agreement, you grant Hearo a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable right and license to 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 Site, in all media formats and channels now known or later developed without compensation to you, except as expressly provided in the Artist Agreement with respect to your Songs. Use of any Songs you submit will be subject to the terms of the Artist Agreement. When you post or otherwise share User Content on or through our Site, you understand that your User Content and 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 Content that 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 Content at any time, and for any reason or for no reason, with or without notice.

5. Prohibited Conduct and Content. You agree that you are solely responsible for your conduct while on the Site, and you agree that you will not do any of the following in connection with the Site 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 User and 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 Site, other than to distribute your music under the terms of the Artist Agreement;

Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Site, except as expressly permitted by us or our licensors;

Modify our Site, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Site;

Use our Site 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 Site or that could damage, disable, overburden or impair the functioning of our Site in any manner;

Reverse engineer any aspect of our Site or 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 any part of our Site;

Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Site;

Develop or use any applications that interact with our Site 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 Site, the Service, or the Site Content; or

Use our Site for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms or any applicable law, rule or regulation.

You may not create, post, store or share any User Content that:

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 Site, or may expose Hearo or others to any harm or liability of any type.

Enforcement of this Section 5 is 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 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules.

6. 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 Site (collectively the “Fees”). 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 Site, 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 other fees 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 Site 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 outside of the Service, or to convert JAM Tokens into U.S. dollars 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. .

7. Copyright; Limited License. You acknowledge that the Site, the Service, and the HEARO Content are the proprietary property of HEARO, and protected by U.S. and international copyright and other laws. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Site and the Service. You agree to comply with all intellectual property laws, and except with respect to any User Content you own or control, you shall not (a) encumber any interest in, or assert any rights to, the Site Content; (b) modify, transmit, participate in the sale or transfer of, or create derivative works based on any Site Content, in whole or in part; (c) resell, redistribute, or make any commercial use of the Site, the Service, or the Site Content (other than to promote and distribute your Songs); or (d) use the Site, the Service, or the Site Content other than for its intended purpose.

With respect to Songs, upon payment of the applicable Fee (as set forth on the Site at the time of purchase), you will be granted a nonexclusive, nontransferable, non-sublicensable, license to access the Song in accordance with the license terms indicated on the Site for such Song and the rights you select. You may not use or access any Site Content, 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.

THE USER CONTENT AND 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 CONTENT AND 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 CONTENT OR ARTIST CONTENT VIA THIS SITE OR OTHERWISE. YOU ASSUME ANY AND ALL RISK AND LIABILITY ASSOCIATED WITH THE USER CONTENT AND THE ARTIST CONTENT YOU ENCOUNTER. Any use of the Site, the Service, or the Site Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights. This license is revocable at any time.

8. Trademarks. HEARO, TUNE.FM and our logos, our product or service names, our slogans, and the look and feel of the Site are 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 Site are 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 Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the HEARO Trademarks displayed on this Site, without our prior written permission in each instance. All goodwill generated from the use of the HEARO Trademarks will inure to our benefit.

9. 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 Site and/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 Site contains 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: copyright@hearo.fm

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 Site is infringing, you may be liable to Hearo for certain costs and damages.

10. Feedback. You may voluntarily post, submit or otherwise communicate to us, including through the fan button functionality of the Site, any questions, comments, suggestions, ideas, concepts, techniques, original or creative materials or other information about Hearo, the Site 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 license to 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,

11. Links to Other Web Sites. This Site may periodically provide links to third party websites (“Third-Party Sites”) as well as other websites operated by HEARO (“Other HEARO Sites”). This Agreement governs only this Site and not any Third-Party Sites or Other HEARO Sites. Our decision to link to a Third-Party Site is not an endorsement of the content or services in that linked Third Party Site. If you decide to access linked Third-Party Sites, you do so at your own risk. You should direct any concerns regarding any Third-Party Sites to the administrator of the applicable Third-Party Site. We also prohibit the use of any links to the Site from any other websites unless establishment of such a link is approved in advance by us in writing.

12. Advertisements and Promotions; Third-Party Products and Services. . Hearo may run advertisements and promotions from third parties on the Site or may otherwise provide information about or links to third-party products or services on the Site. 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 party information on the Site.

13. Third-Party Content. Hearo may provide third-party content on the Site and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Hearo does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Hearo is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.

15. DISCLAIMER OF WARRANTIES. YOUR USE OF OUR SITE IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THIS SITE, THE SERVICE, AND THE SITE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF HEARO, ITS AFFILIATES, SUBSIDIARIES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “HEARO PARTIES”) GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF ANY PORTION OF THE SITE, THE SERVICES, OR THE SITE CONTENT. IN ADDITION, NONE OF HEARO PARTIES WARRANT THAT THIS SITE, THE SERVICES, OR THE SITE CONTENT WILL BE (I) AVAILABLE ON AN UNINTERRUPTED OR ERROR FREE BASIS, OR (2) FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.

YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE, THE SERVICES, THE SITE CONTENT, AND THE ACCURACY, TIMELINESS OR COMPLETENESS THEREOF, IS ASSUMED SOLELY BY YOU. NONE OF HEARO PARTIES MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SITE, THE SERVICES, AND THE CONTENT INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. You agree that you are solely responsible for the means you use to access the Site and all costs associated therewith. You understand that we are not responsible for the performance of your hardware, software, the Internet, your Internet service provider and other third parties involved in connecting you to the Site.

16. 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.

17. Indemnification. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold the HEARO Parties harmless from and against any and all claims, losses, liabilities, actions, judgements, demands, damages, and expenses (including attorneys’ fees) arising from or related to (a) your use of the Site, the Service, the Site Content; (b) any violation of these Terms of Use; (b) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (c) any User Content (including Songs) you upload or otherwise submit; or (d) your conduct in connection with the Site and the Service.

18. 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 Site and 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.

18. 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 Site, the Service and/or the Site Content at any time and for any reason, or no reason, without prior notice or liability. We reserve the right to change, suspend, modify, or discontinue all or any part of this Site, the Service or the Site Content at any time without prior notice or liability. You also have the right to stop using our Site and the Service at any time upon written notice sent to legal@hearo.fm. We are not responsible for any loss or harm related to your inability to access or use our Site or the Service. Upon termination for any reason, you may not access or use the Site or the Service.

19. Dispute Resolution; Binding Arbitration. 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 any dispute arising out of or related to these Terms, the Service, or our Site is 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 Site, 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 legal@hearo.fm. 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 relief sought. 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 19, a “consumer” means a person using the Site for 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 that the 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 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 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 will not 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 19 by emailing us at legal@hearo.fm. 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 19 is 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 19 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; 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 19 is 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 19 will be enforceable.

20. 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 Site shall 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 federal courts located in the New Castle County, Delaware. These Terms of Use contain the entire agreement of the parties concerning this Site, the Service, and the Site Content (including Songs) 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 Site. 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 Site Content to countries or persons prohibited under the export control laws of the United States. You are prohibited from any use of the Site that 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 Site convenient and fun to use. Questions or comments regarding this Site, including any reports of non-functioning links, should be submitted using our email address at feedback@hearo.fm, or via U.S. mail to1600 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 9 above.

21. Notice to California Users. Under California Civil Code Section 1789.3, 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.





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