PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
1. Key Terms
AGP Media, LLC DBA Soundful (hereafter “Soundful”) is an online platform that facilitates the buying and selling of custom made Musical Compositions for registered Soundful users and provides various music producing services (collectively, “Services”), which Services are accessible at www.soundful.com (hereafter “Website”).
“Content” means text, graphics, images, music, software, audio, video, information or other materials contained on the Website, including any Musical Compositions or Content uploaded by User.
“Musical Compositions” means music or sounds, including any accompanying words, recorded or composed by the use of musical instruments, computer programs and/or any other sound production equipment, digital, analogue or otherwise.
“User” or “Users” mean a person over the age of 18 who uses, visits, browses, or accesses the Website and its Services, and/or registers for an online account with Soundful. By using, visiting, browsing or accessing the Website or Services, User represent and warrant that Use is 18 or older.
“User’s Jurisdiction” means the local geographic area, comprising of the municipality, city, county, the whole of the state, or any part of the State, where User accesses Soundful’s services, over which legal authority extends and where such legal authority may exercise all or any of its powers under the law.
“Service” or “Services” mean services provided by Soundful for facilitating the buying and selling of custom made Musical Compositions, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.
“Tax” or “Taxes” mean any sales taxes; value added taxes, goods and services taxes, or any other municipal, state, federal and national indirect or other withholding and personal or corporate income taxes, including taxes in the country that User may reside in.
2. Terms of Service
These Terms constitute a legally binding agreement between the User and Soundful and is effective as of 4-20-2019 for all Users. By clicking the “Exclusive Music” button, “Standard Music ” button or the “My Account” button when registering with Soundful as a buyer of Musical Compositions, or by otherwise accessing or using the Soundful website, services, applications and/or tools, User accepts these Terms.
If User does not agree to these Terms, User has no right to obtain information from or otherwise continued using the Website or Services. Failure to use the Website or Services in accordance with these Terms may subject User to civil and criminal penalties.
3. Changes to Terms of Services
a. Soundful reserves the right to adjust pricing for any Content or any Services thereof in any manner and at any time as we may determine in our sole and absolute discretion. At its discretion, Soundful may post charges individually and/or aggregate charges with other purchases made on the Website. Except as otherwise expressly provided for in these Terms of Service, any price changes will take effect following email notice to User.
b. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our users. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle User to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
c. User agrees to pay for all products that User purchases through the Website. User is responsible for providing Soundful with a valid payment method. Soundful only accepts U.S. Dollars. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and User does not edit User’s Payment Method information, User remains responsible for any uncollected amounts and authorizes Soundful to continue billing the Payment Method, as it may be updated. This may result in a change to User’s payment billing dates. For certain Payment Methods, the issue of User’s Payment Method may charge User a foreign transaction fee or other charges. Check with your Payment Method service provider for details.
d. User is responsible for paying any governmental Taxes associated with any purchases through Soundful, including, but not limited to, sales, use or value-added taxes.
e. Each purchase of a Musical Composition will constitute an individual sale subject to these Terms of Service. Each Musical Composition sold and delivered will be treated as a separate transaction, whether delivery is made in whole or in partial fulfilment of an order.
f. USER AGREES THAT USER WILL PAY FOR ALL PRODUCTS AND CONTENT USER PURCHASES THROUGH THE SERVICES, AND THAT SOUNDFUL MAY CHARGE USER’S PAYMENT METHOD FOR ANY PRODUCTS PURCHASED AND FOR ANY ADDITIONAL AMOUNTS (INCLUDING ANY TAXES AND LATE FEES, AS APPLICABLE) THAT MAY BE ACCRUED BY OR IN CONNECTION WITH USER’S ACCOUNT OR PURCHASING HISTORY. USER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING SOUNDFUL WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES.
6. User Conduct
a. User understands and agrees that User is solely responsible for compliance with any and all laws, regulations, and Tax obligations that may apply to use of the Website and Services including all applicable laws, rules and regulations of the State of California or applicable laws, rules and regulations of the User’s Jurisdiction. Soundful reserves the right to issue warnings, limit or terminate our Services, remove hosted content and take technical and legal steps to keep User off Soundful for any User misconduct not consistent with these Terms of Services. Soundful may terminate or restrict User from use of Services, without compensation or notice if User is suspected of (i) violating of any of these Terms of Service or (ii) engaged in illegal or improper use of the Service, including but not limited to, copyright infringement, libel and slander, and credit card fraud.
b. User agrees that User will not post any threatening, abusive, defamatory, obscene or indecent material or otherwise communicate any false or misleading material or message of any kind.
d. User agrees to not circumvent, remove, alter, deactivate, degrade or thwart any of the Content protections or other restrictions; use any robot, spider, scraper, “crawling” a website or using any other automated means to access the Website; decompile, reverse engineer or disassemble, or modify any Musical Compositions, Content, or other products or processes accessible through the Website; insert any code or product or manipulate the content of the Website in any way; or, use any data mining, data gathering or extraction method. In addition, User agrees not to upload, post, Email or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with use of Services, including any software viruses or any other computer code, files or programs.
User consents to receiving electronic communications from Soundful. These communications may involve sending emails to User’s email address provided during registration, or posting communications on the Soundful service, or in your account login page and is a part of User’s relationship with Soundful. User agrees that any notices, agreements, disclosures or other communications that Soundful sends to User electronically will satisfy any legal communication requirements, including that such communications be in writing. User should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. User also consents to receiving certain other communications from us, such as newsletters about new Soundful features and content, special offers, promotional announcements and customer surveys via email or other methods. If User no longer wants to receive certain nontransactional communications, simply email firstname.lastname@example.org to specify User’s Soundful communication preferences.
8. Disclaimers of Warranties and Limitations on Liability
THE SOUNDFUL SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE WEBSITE OR SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. SOUNDFUL DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT USE OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. SOUNDFUL IS NOT LIABLE FOR ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OF BUSINESS REPUTATION, ANY LOSS OF OPPORTUNITY OR ANY LOSS OF DATA SUFFERED THROUGH USE OF OR INABILITY TO USE THE WEBSITE OR SERVICES. SOUNDFUL SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF THIRD PARTY APPLICATIONS AND OTHER SOFTWARE IN CONNECTION WITH THE SOUNDFUL SERVICE. USER USES THE SERVICES SOLELY AT USER’S OWN RISK. SOUNDFUL MAY DISCONTINUE THE WEBSITE OR PORTIONS THEREOF AT ANY TIME, WITHOUT NOTICE.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS WITHIN THE STATE OF CALIFORNIA, IN NO EVENT SHALL SOUNDFUL, OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
USER AGREES TO INDEMNIFY AND HOLD SOUNDFUL AND (AS APPLICABLE) SOUNDFUL’S AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES AND EMPLOYEES, AND SOUNDFUL’S POTENTIAL CUSTOMERS AND CLIENTS, HARMLESS FROM ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES AND DEMANDS, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATED TO ANY CLAIMS, ACTIONS, SUITS, OR PROCEEDINGS MADE OR BROUGHT BY ANY THIRD PARTY DUE TO OR ARISING OUT OF USER’S BREACH OF THESE TERMS, OR USER’S VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
8. Intellectual Property Policy
Soundful adopted this intellectual property policy in accordance with industry best practices, general U.S. intellectual property laws, and the Digital Millennium Copyright Act.
a. User represents that User has all necessary rights to any content uploaded, posted or otherwise published to Soundful and that User is not infringing or violating any third party’s rights by posting it. USER AGREES THAT IF ANY THIRD PARTY BRINGS A CLAIM AGAINST SOUNDFUL RELATED TO CONTENT THAT USER POSTS, THEN, TO THE EXTENT PERMISSIBLE UNDER CALIFORNIA LAW, USER WILL INDEMNIFY AND HOLD SOUNDFUL HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM. SOUNDFUL RESERVES THE RIGHT TO HANDLE ANY POTENTIAL LEGAL DEFENSES UNDER THIS INDEMNIFICATION AGREEMENT HOWEVER SOUNDFUL SEES FIT.
b. User grants Soundful a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, store, and prepare derivative works of any Content. Content may be used to provide Soundful services and to promote Soundful, Content, or the Services in general, in any formats and through any channels, including across any Services or third-party website or advertising medium.
c. Soundful and its affiliates do not represent, warrant or guarantee the truthfulness, authenticity, accuracy, quality or reliability of any of the Content posted, displayed, linked to or otherwise transmitted via our services. Soundful and its affiliates do not endorse any opinions expressed in or through any such Content. User agrees that User must evaluate and bear all risks associated with uploading or purchasing any Content, including any claims arising from the authenticity, completeness, or originality of the Content. Except where expressly stated to the contrary, Soundful possesses the immediate right, but not the obligation, to edit or remove any Content from the Website at any time and/or terminate User’s ability to access the Website and/or our services without notice, at its sole discretion.
d. The Website, including without limitation all uploaded Content and all intellectual property rights in and to the same, is owned by or licensed to Soundful, its affiliates, or our third-party content providers. User must not modify, decompile, or reverse engineer any software that Soundful or its affiliates discloses to User, and User must not remove or modify any copyright or trademark notice, or other notice of ownership. Unless User has purchased or legally obtained rights to Content, User acknowledges and agrees that no right, title or interest in any Content is transferred to User as a result of use of Content, the Website, or any services provided or otherwise made available via the Website.
9. Notices of Intellectual Property Infringement
Soundful does not own the musical compositions, sound recordings, art or other written or visual images (collectively, the “Content”) posted by third parties to the Website. All Content is posted by an individual, group or company (collectively, the “Artist”) who has represented and warranted to Soundful that, among other things, neither the Content nor the names, trademarks and service marks under which Content is promoted (collectively, the “Name”) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights. Buyers are subject to clear any samples on any composition purchased.
User represents that User has all necessary rights to any Content uploaded, posted or otherwise published to Soundful and that User is not infringing or violating any third party’s rights by posting it. Soundful makes no warranties or representation as to whether or not Content uploaded by Users violates intellectual property laws.
If User believes that material residing on or accessible through Soundful infringes a copyright, User may send a notice of infringement via email to email@example.com, which must include all of the following required information:
a. A physical or electronic signature of a person authorized to act on behalf of the intellectual property owner whose right has been allegedly infringed upon;
b. Specific identification of each alleged infringement of copyrighted work;
c. A description of the specific location of the material that is allegedly infringed upon on Soundful service or Soundful website to find the claimed copyrighted work. Please be as specific as possible and provide a URL to help locate the material that is believed to be copyrighted;
d. Contact information for the complaining party, including: the full name of the intellectual property owner, address, telephone number, and email address as well as contact information for the notifying party, including: name, address, telephone number and email address;
e. A statement that the notifying party has a good faith belief that the use of the work(s) in the manner complained of is not authorized by the intellectual property owner, its agent, or the law; and
f. A statement that the information provided in the notice is accurate, and under penalty of perjury, that the notifying party is authorized to make the complaint on behalf of the copyright owner.
If User misrepresents that material is infringing, User may be liable for damages (including costs and attorney’s fees). Therefore, if User is not sure whether the material is infringing, please contact an attorney before submitting a notice to Soundful. Fraudulent or abusive notices or other misuse of Soundful’s Intellectual Property Policy may result in account termination or other legal consequences.
Counter-Notices of Intellectual Property Infringement
If User has a good faith belief that material removed or disabled as a result of a notification of copyright infringement to Soundful involved a misidentification or mistake, User may send a counter notice via email to firstname.lastname@example.org which must include all of the following required information:
a. User’s physical or electronic signature;
b. Identification of the material that has been removed or to which access has been disabled, with sufficient detail;
c. A statement made under penalty of perjury that User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;
d. User’s name, address, telephone number, and email address, and a statement that User consents to the jurisdiction of the Federal Court for the judicial district in which User is located, or if User’s address is located outside the United States, for any judicial district in which Soundful is located, and that User will accept service of process from the person who provided the original notification or an agent of such person;
If User misrepresents that material is not infringing, User may be liable for damages (including costs and attorney’s fees). Therefore, if User is not sure whether or not the material is infringing, please contact an attorney before submitting a counter notice to Soundful.
10. Governing Law
Any claim, cause of action or dispute (claim) User may have with us arising out of or relating to Soundful shall be resolved exclusively in the U.S. District Court for the Central District of California or a state court located in San Diego County, and User agrees to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern these Terms, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
Although Soundful is a global network and site, but we also strive to respect local laws within User’s jurisdiction. The following provisions apply to users and non-users who interact with Soundful outside the United States:
If User is located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals, User will not engage in commercial activities with Soundful (such as advertising or payments). User will not use Soundful if User is prohibited from receiving products, services, or software originating from the United States.
These Terms of Service and the other policies posted on Soundful constitute the entire agreement between Soundful and User, superseding any prior agreements. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
12. Class Action Waiver and Arbitration Agreement
USER AND SOUNDFUL AGREES THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN USER’S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
User and Soundful agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the San Diego (CA), or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Soundful will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Either User or Soundful may assert claims, if they qualify, in small claims court in San Diego (CA).
In the event that the agreement to arbitrate is found not to apply to User or to User’s claim, User and Soundful agree that any judicial proceeding will be brought in the federal or state courts of San Diego County (CA). User and Soundful consent to venue and personal jurisdiction there.