SERVICE TERMS OF SERVICE
1. Acceptance of Terms.
1.1 Amper Music, Inc. (“Amper” or “we”) provides the Service (as defined below) to you through its web platform located at http://www.ampermusic.com, subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
1.2 Amper may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on Amper Score (as defined below). You can review the most current version of this TOS at any time at http://www.ampermusic.com/terms-2/. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Service and send a cancellation email to email@example.com.
1.3 PLEASE READ THIS TOS CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1.4 As part of the registration process, you will identify an administrative user name and password for your account (“Account”). You may use the administrative user name and password to create standard users as mutually agreed (each with a user password).
2. Service; Access and Use.
2.1 Amper will make available to you Amper Score (as defined below) subject to and in accordance with the terms and conditions set forth in this TOS (the “Service”). As used herein, “Amper Score” means Amper’s proprietary platform and associated technology, in object code format only, which is made available by Amper to you and is intended to permit you to, among other things, create customized and unique musical compositions and soundtracks to be synced with video footage (“Licensed Sound Recording(s)”). You will use Amper Score solely in accordance with this TOS.
2.2 You acknowledge and agree that, as between the parties, Amper retains all right, title, and interest in and to Amper Score and Licensed Sound Recordings, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. As consideration for Amper making available Amper Score to you, you, upon creation of each Licensed Sound Recording, hereby assign and transfer, and will assign and transfer, to Amper ownership of such Licensed Sound Recording and all related patents, copyrights, trademarks, trade secrets and all other intellectual property rights in all countries and territories worldwide and under any international conventions, free and clear of any and all liens, pledges, encumbrances or claims. You agree to cooperate fully with Amper, with respect to the procurement of intellectual property rights in or related to Licensed Sound Recordings.
2.3 Amper Score may only be accessed by your employees or consultants who are authorized by you to use Amper Score and who have password-protected usernames provided by the administrator of your account (“Seats”). You will be responsible for tracking all activity for each Seat, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Amper immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each Seat. Amper reserves the right to monitor Seat activity to ensure compliance with the terms of this TOS. If Amper determines that you are in breach of this or any other term of this TOS, it may suspend access to your account and seek further legal remedies.
2.4 Subject to the terms and conditions of this TOS and the payment to Amper in Section 4 of this Agreement, Amper hereby grants to you, during the term of the Service, a non-exclusive, non-transferable right to: (a) access and use Amper Score internally to create Licensed Sound Recordings, and sync any Licensed Sound Recording with a particular piece of Content (as defined below); (b) download, copy and internally use any Licensed Sound Recording as synced with such particular piece of Content; (c) directly or indirectly through third parties who own or operate online websites, mobile sites or applications or other digital properties (“Third Party Publishers”) distribute to end users any Licensed Sound Recording, solely as synced with such particular piece of Content; (d) grant Third Party Publishers the non-exclusive, non-sublicenseable and non-transferable right to distribute and publicly perform any Licensed Sound Recording solely as synced with such particular piece of Content, and solely for the personal non-commercial use of each end user; and (e) grant any end user the non-exclusive, non-sublicenseable and non-transferable right to access and play any Licensed Sound Recording solely as synced with such particular piece of Content, and solely for the personal non-commercial use of such end user. The licenses under Sections 2.4(c) through (d) shall survive termination of this TOS with respect to Licensed Sound Recordings prior to the effective date of termination of this TOS.
2.5 Except as expressly permitted hereunder, you shall not and shall not permit or authorize any third party to: (a) copy, modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, or algorithms of Amper Score or any Licensed Sound Recordings; (b) translate or create derivative works based on Amper Score or any Licensed Sound Recordings; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, display, publish or otherwise commercially exploit or make Amper Score available to any third party; (d) access or use Amper Score (or any part thereof) or any Licensed Sound Recordings to create, develop, or build a product, solution, platform, or service which is the same as, substantially similar to or competes with Amper Score; (e) use Amper Score other than for its legitimate business purposes as contemplated by this TOS; or (f) interfere with or disrupt the integrity or performance of Amper Score or the data contained therein or attempt to gain unauthorized access to Amper Score or its related systems or networks. Amper reserves all right, title, and interest in and to Amper Score not expressly granted to you herein.
2.6 Under no circumstances may you permit third party users to access or use Amper Score, or otherwise create musical compositions, sound recordings and/or soundtracks or Licensed Sound Recordings. You acknowledge and agree that you are solely responsible for the creation of Licensed Sound Recordings.
2.7 You will not use the Licensed Sound Recordings in connection with any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to use under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Amper, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Amper or its users to any harm or liability of any type.
2.8 You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Amper with respect to Amper Score. Amper shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features, or functionality. You hereby grant Amper a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide, and/or lease products or services which practice or embody or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
3. Ownership; General Conditions.
3.1 You acknowledge and agree that, as between the parties, Amper retains all right, title, and interest in and to Amper Score and the Licensed Sound Recordings, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Amper grants no, and reserves any and all, rights other than the rights expressly granted to you under this TOS with respect to Amper Score or the Licensed Sound Recordings. You will not remove, obscure, or alter any intellectual property rights notices relating to Amper Score.
3.2 You acknowledge and agree that Amper may register any Licensed Sound Recording with a performing rights organization (e.g., ASCAP, BMI, SESAC) to collect royalties for public performances of such Licensed Sound Recording. Amper tracks each Licensed Sound Recording for such purpose. You will reasonably cooperate with, including, without limitation, providing any data reasonably requested by Amper to calculate such royalties to, Amper, for purposes of tracking and reporting to performing rights organizations performances of Licensed Sound Recordings on your properties and third party properties. You acknowledge and agree that Amper and/or its affiliates, in Amper’s sole determination, shall be the named writer and publisher of record with regard to, but limited to, registration of the musical works with Performing Rights Organizations.
3.3 Amper may: (i) copy, use, modify, distribute, display, and disclose your data solely to the extent necessary to provide Amper Score to you pursuant to the terms and conditions of this TOS; (ii) copy, modify, and use your data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes; and (iii) copy, modify and use your data on an aggregate and de-identified basis, stripped of any personally identifiable information, for marketing purposes and internal business purposes and analytics, provided that such use or disclosure does not identify you or your products, services, segments, attributes, search criteria or consist of data solely attributable to you. For purposes hereof, “your data” means any and all information collected and/or stored by or on behalf of you in connection with or derived from your use of Amper Score, excluding data and information relating to the operation and/or performance of Amper Score.
3.4 You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Amper reserves the right to access your account in order to respond to your requests for technical support. Amper has the right, but not the obligation, to monitor the Service, Amper Score and all video, audio, image, text, software and any other content that you upload or otherwise make available on Amper Score or through the Service (collectively referred to as the “Content”). You further agree that Amper may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3.5 The failure of Amper to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Amper, even though it is electronic and is not physically signed by you and Amper, and it governs your use of the Service.
3.6 Amper reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Amper’s website and in other communication with existing or potential Amper customers. To decline Amper this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Amper information regarding your credit card or other payment instrument. You represent and warrant to Amper that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Amper the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize Amper to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Amper know within sixty (60) days after the date that Amper invoices you. We reserve the right to change Amper’s prices. If Amper does change prices, Amper will provide notice of the change on its website or in email to you, at Amper’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Amper may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Amper thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on Amper’s net income.
5. Trial Period.
Amper may offer you a two-week trial period for use of Amper Score. During any such trial period, your use of Amper Score hereunder shall be at no charge to you, and Amper will not collect any data regarding your use of Amper Score. Notwithstanding anything in this TOS to the contrary, during any such trial period, you may not download any Licensed Sound Recordings, and your rights under Section 2.4 are limited to 2.4(a). The licenses under Sections 2.4(b) through (e) shall not apply during such trial period.
6. Representations and Warranties.
You represent and warrant to Amper that (i) you have full power and authority to enter into this TOS; (ii) your Content and other activities in connection with the Service, and Amper’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iii) you are eighteen (18) years of age or older.
The term of the Service will commence on the date you agree to this TOS and will continue for the period of time mutually agreed to by the parties in writing (the “Service Period”). You have the right to terminate your account at any time by sending a cancellation request to email@example.com. Subject to earlier termination as provided below, Amper may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Amper may also terminate this TOS upon thirty (30) days’ notice, if you breach any of the terms or conditions of this TOS. Amper reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). Notwithstanding the foregoing, upon termination or expiration of the Service Period: (a) all rights and licenses granted by Amper to you herein will immediately terminate, and (b) you will discontinue its use of the Service hereunder. Any provision of this TOS which by its nature is intended to survive will survive expiration or termination of this TOS.
8. Disclaimer of Warranties.
8.1 Under no circumstances will Amper be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Amper does not pre-screen content, but that Amper and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via Amper Score. Without limiting the foregoing, Amper and its designees will have the right to remove any content that violates this TOS or is deemed by Amper, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
8.2 THE SERVICE, INCLUDING AMPER SCORE AND THE LICENSED SOUND RECORDINGS, AND ALL SERVER AND NETWORK COMPONENTS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AMPER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT AMPER DOES NOT WARRANT THAT AMPER SCORE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM AMPER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
9. Limitation of Liability.
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL AMPER BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
9.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, AMPER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Amper from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of your Content, or your other access, contribution to, use or misuse of the Service. Amper shall provide notice to you of any such claim, suit or demand. Amper reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Amper’s defense of such matter.
11. Dispute Resolution By Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate.
This Dispute Resolution by Binding Arbitration section is referred to in this TOS as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and us, whether arising out of or relating to this TOS (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and we are each waiving the right to a by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-individualized Relief
YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be sent to Amper Music Inc.,30 Broad St., 36th Floor, New York, NY 10004 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If we and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://info.adr.org/consumer-arbitration/. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this TOS as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than s and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this TOS and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless we and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, we will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, we will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this TOS will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this TOS to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between you and us in accordance with the language of this Arbitration Agreement as of the date you first accepted this TOS (or accepted any subsequent changes to this TOS).
NOTWITHSTANDING ANYTHING TO THE FOREGOING IN THIS ARBITRATION AGREEMENT, IF YOU REPRESENT A COMPANY OR OTHER ENTITY, OR ARE ENTERING INTO THIS TOS IN ANY CAPACITY OTHER THAN AS AN INDIVIDUAL REPRESENTING YOURSELF, SUBSECTIONS (A), (D) AND (E) ABOVE ARE HEREBY DELETED AND REPLACED IN THER ENTIRETY WITH THE CORRESPONDING PROVISIONS BELOW AND SUBSECTION (H) ABOVE DOES NOT APPLY TO YOU.
12. U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Amper on your equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of Amper, but Amper may assign or transfer this TOS, in whole or in part, without restriction.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Amper in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
15. Governing Law.
This TOS shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by Amper in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit http://www.ampermusic.com/privacy to understand how Amper collects and uses personal information.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Amper will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Amper’s Copyright Agent at email@example.com (subject line: “DMCA” Takedown Request”). You may also contact us by mail or facsimile at:
Amper Music Inc.
30 Broad St., 36th Fl.
New York, NY 10004
Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on Amper Score, with enough detail that we may find it on Amper Score;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that the relevant content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Amper will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Amper’s sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Amper has adopted a policy of terminating, in appropriate circumstances and at Amper’s sole discretion, members who are deemed to be repeat infringers. Amper may also at its sole discretion limit access to Amper Score and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.