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Effective: July 1, 2020
1. Acceptance of Terms; Modifications. These Terms of Service (the “Terms”) are a binding legal agreement between you and MusicLift, Inc., a company incorporated under the laws of Delaware with a registered office at Innovation Park, 1400 E. Angela Blvd, #168, South Bend, IN 46617 (“MusicLift,” “we,” “us” and “our”). The Terms govern your use of our software applications, resources and services for consumers and music service providers to find each other, communicate with each other, and arrange for the provision of music services (collectively, our “MusicLift Service”). The Terms govern all use of the MusicLift Service, whether you access it from our website at www.musiclift.com (or any localized version) (the “Site”), our mobile applications and mobile websites, our Facebook application, our online or phone support offerings, or any other access point we make available to you. BY AGREEING TO THESE TERMS DURING THE ACCOUNT SIGN-UP PROCESS OR ACCESSING OR USING THE MUSICLIFT SERVICE WITHOUT AN ACCOUNT, YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT ACCEPT THEM, IN WHICH CASE YOU DO NOT HAVE THE RIGHT TO USE THE MUSICLIFT SERVICE.
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective (except as otherwise described in Section 17.10 below) when we post the modified Terms on the MusicLift Service, unless otherwise required by applicable law. Your continued access and use of the MusicLift Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
2. MusicLift Service
2.1 Nature of the MusicLift Service. The MusicLift Service consists of a desktop Web application, mobile applications, and other related tools, support and services that consumers (“Consumers”) and providers of music-related services (“Service Providers”) can use to find, communicate with and interact with each other. The MusicLift Service includes our support services, educational materials for Service Providers, and other services. We charge fees for some aspects of the MusicLift Service, as described below in Section 9.
2.2 MusicLift does not provide Music Services. MusicLift is a neutral venue for Service Providers and Consumers. MusicLift is not a Service Provider and, except for emergency phone support and other resources and support specifically described in the MusicLift Service, does not provide Music Services. We make no representations or warranties about the quality of music, equipment, performance, or other service provided by Service Providers (“Music Services”), or about your interactions and dealings with users. Service Providers listed on MusicLift are not under the direction or control of MusicLift, and Service Providers determine in their own discretion how to provide Music Services. Though we provide general guidance on our Site to Service Providers about safety and music services and to Consumers about selecting and engaging Service Providers, MusicLift does not employ, recommend or endorse Service Providers or Consumers, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Providers or Consumers, whether online or offline. We conduct an initial review of Service Provider profiles and we facilitate Background Checks or Identification Verifications (each as described in Section 10, below) on Service Providers conducted by a third party, but, except where we explicitly specified in the MusicLift Service (and then only to the extent specified), do not otherwise screen Service Providers or Consumers. You should exercise caution and use your independent judgment before engaging a Service Provider, providing Music Services, or otherwise interacting with users via the MusicLift Service. Consumers and Service Providers are solely responsible for making decisions that are in the best interests of themselves and their property. For example, each user of the MusicLift Service is responsible for keeping current his or her own instruments functional, and we have no liability for anyone’s instruments if they do not properly function.
2.3 Release. You acknowledge and agree that to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF MUSIC SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
2.4 Transactions are between Consumers and Service Providers. The MusicLift Service may be used to find and offer Music Services and to facilitate payment, but all transactions conducted via the MusicLift Service are between Consumers and Service Providers. Except for the limited refunds and “Booking Protection” specified in Section 9.6, you agree that MusicLift has no liability for damages associated with Music Services (which may include instrumental damage or bodily injury to, or death, of a Consumer or Service Provider) or resulting from any other transactions between users of the MusicLift Service.
2.5 Bookings. Consumers and Service Providers transact with each other on the MusicLift Service when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Music Services via the booking mechanism provided on the MusicLift Service ( a “Booking”). A Booking may be initiated by either a Service Provider or a Consumer by selecting the type(s) of Music Services to be provided and then following the prompts that appear on-screen. All requests are subject to acceptance by the receiving party. The receiving party is not obligated to accept your (or any) request and may, at their discretion, decline for any reason. You acknowledge that, once you complete a Booking, you agree to honor the price and other terms of that Booking, as acknowledged in the Booking confirmation.
2.6 Consumers are Solely Responsible for Evaluating Service Providers. Consumers are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Though MusicLift performs a limited review of Service Provider profiles and facilitates Service Provider Background Checks or Identity Verifications conducted by a third party, any such screening is limited, and MusicLift does not warrant that any such screen is accurate, complete, conclusive or up-to-date. Similarly, MusicLift does not endorse reviews of Service Providers by other Consumers that may be available via the MusicLift Service, and MusicLift makes no commitments that such reviews are accurate or legitimate.
2.7 Abandoned Instruments. Service Providers who arrange for Music Services and fail to retrieve their instrument after the service period identified in a Booking agree that MusicLift (or the Consumer) may, in its (or his or her) sole discretion, safely store the instrument or find other alternate care of the instrument. Service Providers agree to reimburse MusicLift and/or the Consumer for all costs and expenses associated with such actions. Further, MusicLift expressly reserves the right, in its sole discretion, to remove a Service Provider’s instrument from a Consumer’s possession should MusicLift deem it necessary. Prior to removing an instrument from the care of a Consumer, MusicLift will use reasonable efforts during its normal business hours to contact the Service Provider and/or the Service Provider’s emergency contact (if provided) to make alternative arrangements. Should MusicLift not be able to contact the Service Provider or the emergency contact, MusicLift will use its best judgment to find alternative arrangements for the instrument until the Service Provider is able to retrieve his/her instrument.
3. Compliance with Applicable Law. By accessing and using the MusicLift Service, you certify that you: (1) are at least 16 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, the MusicLift Service.
You acknowledge that MusicLift is entitled to rely on these commitments from you, is not responsible to ensure that all users have complied with applicable laws and regulations, and will not be liable for a user’s failure to do so.
4. Use of the MusicLift Service; Suspension.
4.1 Your Conduct on the MusicLift Service. When you use the MusicLift Service, you agree:
4.2 Suspension and Termination. You understand and agree that we have no obligation to provide the MusicLift Service in any specific location or territory, nor to continue providing it once we have begun. We reserve the right to suspend or terminate your access to the MusicLift Service: (1) if in our discretion your conduct on the Site or MusicLift Service is inappropriate, unsafe, dishonest, or in breach of these terms; or (2) if necessary in our discretion to protect MusicLift, its users, instruments, or the public. You may suspend or terminate your use of the MusicLift Service at any time and for any reason. If you wish to deactivate your account, please contact MusicLift.
5. Registration; Account Security. In order to use some aspects of the MusicLift Service, you will be required to create a username, password, and user profile. If you elect to use the MusicLift Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account (or, if MusicLift suspends or terminates your account, not to create additional accounts). You are responsible for maintaining the confidentiality of your username and password for the MusicLift Service, and you agree not to authorize anyone else to use your username and password. You are responsible for all activity under your account. You agree to notify us promptly of any unauthorized use of your account.
6. Privacy. Our collection and use of your personal information on the MusicLift Service is described in our Privacy Statement. By accessing or using the MusicLift Service, you acknowledge that you have read and understand the Privacy Statement.
7. Your Content.
7.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on the MusicLift Service or otherwise in connection with using the MusicLift Service and/or participating in promotional campaigns we conduct on the Site or elsewhere (collectively, "Your Content").
7.2 License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant MusicLift an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting the MusicLift Service, and to sublicense these rights to third parties.
7.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release MusicLift and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.2 and the other provisions of these Terms.
7.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license in Section 7.2 and make the release in Section 7.3 with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear in Your Content; and (3) Your Content does not violate the law or these Terms.
7.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the MusicLift Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
7.6 Reviews. The MusicLift Service may provide the ability to leave public and/or private reviews of users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that MusicLift has no obligation to preserve or indefinitely store any reviews. If you are a Service Provider, we have no obligation to provide you with the content of any reviews about you submitted by other users of the MusicLift Service, whether before or after termination of your account for the MusicLift Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the MusicLift Service at any time.
8. Phone, Text and Mobile Communications.
8.1 Consent to Autodialed Text Messages and Phone Calls. This section 8.1 applies only to users in the United States. You consent to MusicLift communicating with you about the MusicLift Service by SMS, text message, email and other electronic means, including autodialed text messages and phone calls containing service information and/or marketing messages, even if your phone number is on the do-not-call list. Your carrier's normal messaging, data and other rates and fees will apply to these communications. You are not required to provide this consent to receive marketing messages as a condition of purchasing anything or using the MusicLift Service, and you may opt-out of receiving these messages and calls at any time as described in our Privacy Statement (though you may continue to receive messages while MusicLift processes your request).
8.2 Phone Number Changes. In the event you deactivate a mobile phone number provided to us, you agree to update your MusicLift account information promptly to ensure that messages are not sent to the person who acquires your old number.
9. Fees & Payment.
9.1 Currency. All fees, deductible amounts and other payments referenced on, or charged through, the MusicLift Service are listed and payable in local currency.
9.2 Fees for Consumers. Consumers may purchase Music Services from a Service Provider by completing a Booking as described in Section 2.5. If you are a Consumer, you enter into a transaction with the Service Provider when you accept a Booking, and you agree to pay the total fees indicated in the Booking. Except where otherwise specifically indicated on the MusicLift Service, fees for Music Services are determined by Service Providers. As described in Sections 9.3 and 9.4, the total amount Consumers are charged for a Booking may also include a service fee payable to MusicLift. Where required by law, the amount charged will also be inclusive of applicable taxes. The Service Provider, not MusicLift, is responsible for performing the Music Services.
9.3 Fees for Service Providers. Service Providers may agree to provide Music Services to a Consumer by agreeing to a Booking as described in Section 2.5. If you are a Service Provider, you must confirm the Booking before it expires or the Consumer will have no obligation to complete the transaction. Once the Booking is completed by both parties, you agree to honor the price set forth in your Booking. The purchase of Music Services is a transaction between the Consumer and the Service Provider. MusicLift’s role is to facilitate the transaction. We will (either directly or indirectly through an authorized third party) collect payment from the Consumer at the time of Booking and (except to the extent of any payment hold pursuant to Section 9.7) initiate payment to the Service Provider’s account 48 hours after completion of the service period indicated in the Booking. Service Providers are charged a service fee as described in Section 9.4, which we deduct before remitting payment to Service Providers. Where required by law, the amount charged will also be inclusive of applicable taxes.
9.4 Service Fees. We charge service fees for some aspects of the MusicLift Service. If you are a Service Provider, except where otherwise specified via the MusicLift Service, our service fee is calculated as 15 percent of the fees a Consumer agrees to pay to you in a Booking. We charge this fee to the Consumer as part of the total amounts paid by the Consumer.
9.5 Late Fees and Additional Charges. If you are a Consumer, you acknowledge and agree that, if you fail to retrieve your instrument at the end of the service period agreed in a Booking, you will be charged for additional service time (pro rata for each partial late day) at the daily rate established in the Booking. In addition, you agree to indemnify MusicLift from, and agree that we may charge your credit card or other payment method for, any additional costs and expenses we or the Service Provider incur as a result of your failure to retrieve your instrument at the end of the service period agreed in a Booking.
9.6 Cancellations & Refunds.
9.7 Payment Holds. If you are a Service Provider, MusicLift reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 9.3 if there is a reasonable suspicion of fraudulent activity involving your account(s) or for other similarly compelling reason involving protection of MusicLift, the MusicLift community or third party rights. We may also recommend that third party payment service providers restrict your access to funds in your account under the same circumstances.
9.8 Authorization to Charge. When you pay for Music Services or for other services on the MusicLift Service, you will be required to provide us with valid, up-to-date credit card or other payment information and to maintain that payment information (or an acceptable alternative payment method) on file with your account so long as you have any outstanding, confirmed Bookings. You authorize us to charge your credit card or other payment method for fees you incur on the MusicLift Service as they become due and payable, and to charge any alternative payment method MusicLift has on record for you in the event your primary payment method is expired, invalid, or otherwise not able to be charged. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither MusicLift nor the Service Provider will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the MusicLift Service are non-refundable once paid.
9.9 Taxes. Except for taxes on MusicLift’s income and gross receipts or where MusicLift is otherwise required to collect taxes, you acknowledge that you are solely responsible to pay any applicable taxes that arise as a result of your purchase, provision, or use of Music Services via the MusicLift Service. This includes, without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through the MusicLift Service.
9.10 Payment Processing. Payment processing services are provided by Stripe and subject to the Stripe Services Agreement (available at www.stripe.com/legal), and, if you are receiving payments via the MusicLift Service, the Stripe Connected Account Agreement (available at www.stripe.com/connect-account/legal). By using the MusicLift Service to receive payment, you will be asked to set up a Stripe account and accept the Stripe Terms. You authorize MusicLift to obtain all necessary access to, and perform all necessary activity on (including requesting refunds where appropriate), your Stripe Connected Account to facilitate payment related to Music Services you purchase or provide. You further agree to provide accurate and complete information about you and your business, and authorize MusicLift to share it and transaction information with Stripe for the purposes of facilitating the payment processing services provided by Stripe. MusicLift reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion.
10. Background Checks and Identity Verifications.
11. Copyright Infringement.
If you believe in good faith that your copyrighted work has been infringed by content posted on the MusicLift Service, please provide our designated copyright agent with a written notice that includes all of the following information:
Our designated agent for notice of copyright infringement can be reached at:
Attention: Copyright Notice
Innovation Park 1400 E Angela Blvd, #168, South Bend, IN 46617
12. Third Party Services, Links. The MusicLift Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
13. Indemnity. TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD MUSICLIFT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the MusicLift Service; (2) breach of these Terms; (3) disputes with other users of the MusicLift Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties; (6) Your Content; or (7) your use of any Background Check or Identify Verification information in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
14. Intellectual Property.
14.1 MusicLift Service. MusicLift and its licensors retain all right, title and interest in and to the MusicLift Service, the technology and software used to provide it, all electronic documentation and content available through the MusicLift Service (other than Your Content), and all intellectual property and proprietary rights in the MusicLift Service and such technology, software, documentation and content. Except for your rights to access and use the MusicLift Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the MusicLift Service any feedback or suggestions for improvement that you provide to us concerning the MusicLift Service, without any obligation of compensation.
14.2 MusicLift Trademarks. MusicLift owns all rights in and to its trademarks, service marks, brand names and logos (the “MusicLift Marks”). If you are a Service Provider, MusicLift grants you, for so long as you are in good standing on the MusicLift Service, a limited, revocable, non-exclusive, non-transferable license to use the MusicLift Marks solely: (1) in the form incorporated into goods, including customizable marketing collateral (promo cards, signage etc.), made available for purchase via the MusicLift Store and/or (2) in any other manner specifically authorized in writing via the MusicLift Service. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the MusicLift Marks inures solely to the benefit of MusicLift, and (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because MusicLift suspends or terminates your rights to use the MusicLift Service.
15. Warranty Disclaimer for the MusicLift Service. The information and materials found on the MusicLift Service, including text, graphics, information, links or other items, are provided "as is" and "as available." Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the MusicLift Service, but not directly by MusicLift, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MUSICLIFT DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE MUSICLIFT SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN MUSICLIFT; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE MUSICLIFT SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MUSICLIFT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE MUSICLIFT SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS MUSIC SERVICES VIA THE MUSICLIFT SERVICE.
16. Limitation of Liability.
16.1 Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will MusicLift be liable to you for any indirect, special, incidental, or consequential damages, or for any business losses, or loss of profit, revenue, contracts, data, goodwill or other similar losses or expenses that arise out of or relate to the use of or inability to use the MusicLift Service, including without limitation damages related to any information received from the MusicLift Service, removal of your profile information or review (or other content) from the MusicLift Service, any suspension or termination of your access to the MusicLift Service, or any failure, error, omission, interruption, defect, delay in operation or transmission of the MusicLift Service, even if we are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
16.2 Limit on Our Liability to You. EXCEPT FOR THE REFUND AMOUNTS PAYABLE BY MUSICLIFT THAT ARE SET FORTH IN SECTION 9, AND EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL MUSICLIFT’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO THE MUSICLIFT SERVICE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO MUSICLIFT (SPECIFICALLY EXCLUDING AMOUNTS PAID TO SERVICE PROVIDERS) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY OR, IF YOU HAVE NOT PAID MUSICLIFT FOR THE USE OF ANY SERVICES, THE AMOUNT OF $100.00 USD (OR EQUIVALENT IN LOCAL CURRENCY).
16.3 No Liability for non-MusicLift Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MUSICLIFT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE MUSICLIFT SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE MUSICLIFT SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE MUSICLIFT SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR CONSUMER, YOU AGREE TO RELEASE MUSICLIFT FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL MUSICLIFT BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A CONSUMER OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
16.4 Additional Limitations on Liability. To the maximum extent permitted by applicable law, in no event will MusicLift be liable for any damages related to or arising from communicable diseases, including but not limited to Coronavirus/COVID-19. You hereby release and agree to hold MusicLift harmless from, and waive on behalf of yourself, your heirs, and any personal representatives any and all causes of action, claims, demands, damages, costs, expenses and compensation for damage or loss to yourself and/or property that may be caused by any act, or failure to act of MusicLift, or that may otherwise arise in any way in connection with any services received from MusicLift or MusicLift Consumers or Service Providers. You understand that this release discharges MusicLift from any liability or claim that you, your heirs, or any personal representatives may have against the MusicLift with respect to any bodily injury, illness, death, medical treatment, or property damage that may arise from, or in connection to, any services received from MusicLift.
17. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MUSICLIFT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
17.1 Arbitration Agreement; Claims. This Section 17 is referred to as the "Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you and MusicLift (together, the “Parties”) agree that any and all disputes or claims that arise between you and MusicLift relating to the MusicLift Service, interactions with others on the MusicLift Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 4.1, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
17.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
17.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND MUSICLIFT AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 17.9 BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) 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 MUSICLIFT AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), 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). ANY RELIEF AWARDED CANNOT AFFECT OTHER MUSICLIFT SERVICE USERS.
17.4 Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at email@example.com or by mail at Innovation Park, 1400 E. Angela Blvd., #168 South Bend, IN 46617. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
17.5 Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted in English by a neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration and are incorporated in these Terms by reference. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the 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 these Terms as a court would, including without limitation, the limitation of liability provisions in Section 16. Although arbitration proceedings are usually simpler and more streamlined than trials 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 the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 USD (or equivalent in local currency) or less, you or MusicLift may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and MusicLift subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or MusicLift, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Indiana, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different MusicLift users, but is bound by rulings in prior arbitrations involving the same MusicLift user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
17.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be shared equally by you and MusicLift, except where prohibited by applicable law. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse MusicLift for all fees associated with the arbitration paid by MusicLift on your behalf that you otherwise would be obligated to pay under the JAMS Rules.
17.7 Confidentiality. 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.
17.8 Severability. If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable.
17.9 Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section 17.9. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to MusicLift, Inc., Attn: Legal, Innovation Park, 1400 E. Angela Blvd, #168, South Bend, IN 46617. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the MusicLift Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 18.
17.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any changes to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against MusicLift prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against MusicLift prior to the effective date of removal.
18. Governing Law and Jurisdiction.
18.1 These Terms, and any dispute between you and MusicLift, will be governed by the laws of the State of Indiana, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 17 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and MusicLift must be resolved exclusively by a state or federal court located in the State of Indiana. You and MusicLift agree to submit to the personal jurisdiction of the courts located within South Bend, Indiana for the purpose of litigating all such claims or disputes.
19. Miscellaneous. Nothing in this Agreement will be construed as making either party the partner, joint venturer, agent, legal representative, employer, worker, or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be 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 these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between MusicLift and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between MusicLift and you in relation to the access to and use of the MusicLift platform. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. MusicLift’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law. You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without MusicLift's prior written consent. MusicLift may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
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