Create Your Song Terms and Conditions of Use
Thank you for your interest in Create Your Song, a service provided by Create Your Song (“Create Your Song”, “we”, “us”, or “our”).
This Agreement is between you and Create Your Song, and includes any additional terms and conditions posted by Create Your Song through the Platform, or otherwise made available to you by Create Your Song. You acknowledge that you have read and agree to this Agreement. If you do not agree with (or cannot comply with) this Agreement, you may not access or use the Platform.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT, AS FURTHER SET FORTH IN SECTION 17 BELOW, REQUIRES THAT, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17.3, DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE ANY RIGHT (1) TO HAVE A DISPUTE RESOLVED BY A JUDGE OR JURY OR (2) TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
You and any other individuals accessing or using the Platform are each referred to individually as a “User”. In order to use the Platform, you must (1) be of legal age to enter into this Agreement, and (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, rules or regulations. If you are an individual accessing or using the site on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Platform and to any such Organization. Any references to “Create Your Song” in these Terms will be deemed to include any Create Your Song affiliate, i.e., any entity that directly or indirectly controls, is controlled by, or is under common control with Create Your Song .
Changes to the Agreement
Occasionally we may make changes to the Agreement by posting an updated version of the Agreement to the Platform. When such changes are material, we will provide you with additional notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Platform or by sending you an email. Your continued use of the Platform after any changes have been made to the Agreement will constitute your acceptance of the changes. The “Last Updated” legend above indicates when this Agreement was last changed.
Transactions, Payment Process and Our Role
We may make available the ability for you to connect with other Users for the purpose of providing, or being provided, various types of music-related services and products, including but not limited to composing, performing, recording, editing, mixing, producing, or designing visual content. Such services are provided by a User (in such capacity, “Creator”) to another User (in such capacity, “Recipient”) in exchange for consideration by entering into Project Transactions and Track Transactions (defined below and collectively referred to as “Transactions”) on the Platform.
Due to the scale and self-service nature of the Platform, you expressly acknowledge and agree that (a) the Platform is merely a forum where Creators and Recipients can meet; (b) we are a not a party, to any Transactions between you and other Users and are not liable for any payments you make to, or receive from, a User; (c) you are not our employee or an employee of any other User for whom you provide services in connection with a Transaction; (d) we are not responsible, and will not have any liability or obligations, for any acts or omissions by you or any other Users related to Transactions; (e) we make no representation as to the reliability, capability, or qualifications of any Creators or the quality, security, or legality of any Transaction, and we disclaim any and all liability relating thereto; (f) we are in no way responsible for the accuracy, currency or completeness of any information provided by Creators and Recipient in connection with any Transaction; and (g) Creator and the Recipient are responsible for complying with all applicable legal rules related to a Transaction, including but not limited to, any applicable employment laws and intellectual property laws.
All payment processing and fund transfer services in relation to Transactions are provided to Users by a third party payment service provider. You may need to agree to the payment service provider’s terms in order to enter into Transactions, which are presented to you and which shall form a separate legal agreement between you and the payment service provider (Create Your Song is not a party to your agreement with the payment service provider). Any obligations relating to the provision of payment processing and fund transfer services related to Transactions are owed to you by the payment service provider, not Create Your Song. You expressly acknowledge and agree that: (a) we are not an agent of payment service provider and neither provides nor offers payment services on behalf of a payment service provider; (b) we are not, nor should anything in this Agreement be construed to imply that we are acting in any way under a mandate conferred by a payments service provider; and (c) we are not an escrow service, money aggregator or money transmitter.
We may make available the ability for you to connect with other Users for the purpose of providing, or being provided, various types of music-related services and products on a project basis (each, a “Project”), such as composing, performing, recording, editing, mixing, producing, designing visual content. Such services are provided by a Creator to a Recipient in exchange for consideration to be determined and negotiated by the applicable Users (“Project Fee”). The Platform may enable Users to find other Users, negotiate transactions for Projects, and enter into agreements resulting from such negotiations (“Project Transactions”). The Creator and Recipient must enter into a written agreement, including agreements entered into electronically, that provides the terms and conditions of the Project Transaction (“Project Terms”), and that describes and sets out potential limitations on the Recipient’s right to use, reproduce, modify, adapt, publish, translate, distribute, perform (publicly or otherwise), and otherwise exploit the materials, information, sounds, recordings, and other content provided by the Creator in connection with the applicable Project (“Submission”).
AFTER A PROJECT HAS BEEN CREATED OR OPENED ON THE PLATFORM, YOU ARE STRICTLY PROHIBITED FROM NEGOTIATING AND EXECUTING A PROJECT TRANSACTION, INCLUDING MAKING OR REFUNDING ANY PAYMENTS, RELATED TO THAT PROJECT OUTSIDE OF THE PLATFORM. IN ADDITION, YOU MAY NOT ENTER INTO ANY AGREEMENT WITH ANY OTHER USERS WHOM YOU MET THROUGH THE PLATFORM UNLESS YOU DO SO THROUGH THE PLATFORM. THESE ACTIONS ARE VIOLATIONS OF THIS AGREEMENT AND YOUR RIGHTS TO CONTINUE USING THE PLATFORM WILL IMMEDIATELY TERMINATE UPON YOUR VIOLATION OF THIS PARAGRAPH. YOU WILL BE LIABLE FOR ANY LOSSES INCURRED TO Create Your Song DUE TO SUCH VIOLATIONS.
Additionally, in connection with any violation of the prior paragraph, the applicable Recipient shall promptly pay to us the greater of (i) the fees we otherwise would have been entitled to under this Section 3 had Recipient and Creator not breached the prior paragraph; or (ii) one thousand U.S. dollars (US $1,000). You agree that the amounts identified herein are a reasonable estimate of anticipated loss to us and are fixed as liquidated damages, and not as a penalty, because of the difficulty of ascertaining the exact amount of damages that would be sustained by us in the event you breach this paragraph.
You acknowledge and agree that Create Your Song may charge Creator a fee (“Platform Fee”) in connection with each Project. The Platform Fee, and other applicable fees (such as a transaction fee), are presented to Creators when Creators prepare Project proposals for Recipients. All applicable fees are deducted by the payment service provider from the Project Fee that the payment service provider receives from Recipients on behalf of Creators upon completion of the Project Transaction (“Project Fee”).
Unless separately agreed to in writing by a User and Create Your Song, a Project is activated when Recipient has funded the Project Fee. When the Recipient has paid the Project Fee to the payment service provider, we will notify Creator that the Project has been funded and Creator can begin working on the Project. When the Creator has completed the Project, Creator will submit the
Submission for Recipient’s review and approval. After a Project Transaction has been completed to the Recipient’s reasonable satisfaction, the Recipient will confirm that the Project Transaction is completed through the Platform, by using the “Mark project as completed” button. By marking the project as completed, the Recipient is confirming the project has been completed to their satisfaction, goods and services paid for have been fully received and there is no dispute for the transaction. Before marking the Project as completed, if Recipient determines that the Submission does not match the Project requirements and description, Recipient may, if agreed so in the Project Terms, request that Creator revises the Submission. Upon the Recipient’s confirmation that the Project Transaction is completed, the payment service provider will deduct the Platform Fee and any other applicable fees from the Project Fee and remit the remainder to the Creator. When Creator accepts a Project posted by Recipient on the Platform, Creator is obliged to fulfill the Project in accordance with the Project Terms. In the event that the Creator is unable to fulfill the Project, a refund will be issued.
If a Project is not marked completed or requested to be revised by Recipient within 14 days after the Submission has been provided by the Creator, Create Your Song has the right to mark the Project as completed, whereby the Project Fee is released to the Creator.
The Platform may also provide Users (i.e., “Creators”) the ability to license and/or purchase pre-recorded beat, instrumental tracks or other sound recordings (“Tracks”) to other Users (i.e., “Recipients”). Such Tracks are made available for licensing or purchase subject to pre-determined licensing and/or purchase terms (the “Track Terms”) selected by the Creator of the applicable Track. If you are purchasing or licensing a Track, you must review the applicable Track Terms prior to purchasing or licensing the Track (each a “Track Transaction”), including the fees you will be charged by the Creator (“Track Fee). The Creator and the Recipient who purchases the Track will be bound to any Track Terms agreed to when entering into a Track Transaction.
You acknowledge and agree that in connection with a Track Transaction, Create Your Song may charge a Platform Fee. Creators are notified by Create Your Song of the applicable Platform Fees and any other applicable fees (such as a transaction fee) when they request that their Tracks be listed on the Platform. All applicable fees for a Track Transaction are deducted by the payment service provider from the Track Fee that the payment service provider receives from the applicable Recipient, on behalf of the Creator, upon completion of such Track Transaction. Following such deduction, the remaining amount of the Track Fee is remitted by the payment service provider to the applicable Creator.
Some Creators offer their Tracks solely through Create Your Song. Create Your Song may endeavor to promote such Tracks on the Platform by giving them higher visibility in search results over Tracks offered through multiple services.
General Transaction Conditions
If a Recipient fails to fund the amounts owed following an agreement for a Transaction with a Creator, whether by cancelling the Recipient’s credit card, initiating an improper chargeback, or any other means, Recipient’s Create Your Song account will be suspended, no additional payments will be processed, any workin-progress will be stopped and any Track license is void. In its discretion, Create Your Song may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. The Recipient may be reinstated at Create Your Songs discretion upon repayment of funds owed.
Create Your Song, in its sole discretion, may request the payment service provider to place a hold on any or all of the payments you receive or would otherwise receive when we believe there may be a high level of risk associated with you, your Sign-In Name (as defined below), or any or all of your Transactions. If you are involved in a dispute with another User, in certain circumstances we may request to place a temporary hold on the funds in your account to cover the amount of any potential liability. If the dispute is resolved in your favor, Create Your Song will request to lift the temporary hold following receipt of evidence of such favorable resolution. If the dispute is not resolved in your favour, Create Your Song may request to withdraw funds from your account to cover the outstanding liabilities.
In the event of any dispute relating to the Project, the Creator and the Recipient shall attempt to resolve it between them in the first instance. If further assistance is required to reach a resolution, please reach out to Create Your Song. In no case will refunds be issued by Create Your Song when the Recipient has marked a job as completed.
You understand that if Create Your Song determines that you have breached these terms, the Project Terms or any of our policies, we reserve the right to remediate the Project concerned at our discretion.
All fees, commissions or other amounts payable to Create Your Song are exclusive of VAT, GST, HST, sales taxes or other similar taxes, duties, charges or assessments (“Indirect taxes”). Indirect taxes will be added on top of agreed amounts as per local legislation. Each party shall be solely responsible for payment of all Indirect taxes it is legally obligated to pay arising as a result of this Agreement or otherwise. Further each party shall be solely responsible for collection and remittance of all Indirect taxes it is legally obligated to collect and remit arising as a result of this Agreement or otherwise.
Where Create Your Song is required by law to collect and remit applicable Indirect taxes on Creator behalf, Create Your Song shall be responsible for Indirect tax collection and remittance solely on the Transactions arising between Creator (which is the seller) and Recipient (which is the buyer) through the Platform to the extent that such Transactions are taxable. Creator shall indemnify, defend, and hold Create Your Song harmless for any and all losses suffered by Create Your Song resulting from incorrect representation of goods and/ or services provided to Recipients through the Platform. Should governmental authorities determine that Creator is otherwise responsible for the collection and remittance or reporting of Indirect taxes related to the sale of goods and/or services on the Platform, Creator shall solely be responsible for payment of such Indirect taxes (and all related penalties and interest) and/or reporting of such taxes (as applicable).
Recipients and Creators are responsible for paying any income or withholding taxes which may apply to them depending on residency or location. Both Creators and Recipients represent and warrant that they comply, and will comply at all times with their obligations under income tax provisions in their jurisdiction. This will include providing and collecting all tax forms and certifications necessary so that all applicable withholding taxes are reported and withheld depending on Recipients and Creators tax residence. Recipients and Creators shall indemnify and hold harmless
Create Your Song for any taxes, interest, and/or penalties imposed on Create Your Song, and for any other damages incurred by Create Your Song, including legal fees and expenses, as a result of the Recipients and Creators not complying with their income tax and withholding and reporting obligations. The agreed upon price between Recipients and Creators are inclusive of all withholding and/or income taxes and charges that may apply to Recipients and Creators, and it is their responsibility to collect and/or remit. Notwithstanding the foregoing, if it is determined by a governmental authority that Create Your Song is obligated to withhold and remit withholding taxes from payments made under these terms and conditions, Recipients and Creators agree that Create Your Song is authorized to withhold those taxes from any payment made to Recipients and Creators, whether or not those payments relate to the transactions covered by these terms and conditions, including that Create Your Song is authorized to withhold from future payments amounts the government authority has determined are due from prior payments. Recipients and Creators agree that they will cooperate with Create Your Song in defending against any such Create Your Song withholding tax obligation that may be determined to exist by a governmental authority, including by providing certifications that the income taxes were paid by the recipient of the income, and will assist Create Your Song in collecting withholding taxes from any payments made to any party to the transaction. For tax advice about your Create Your Song earnings, we recommend consulting a tax professional and reviewing tax regulations.
Users are responsible for obtaining sufficient liability insurance policy to cover all risks associated with their Transactions.
Registration to the Platform
Although registration is not required to access and use the Platform, there are certain benefits that flow from being a registered User. For example, you must be a registered User in order to be a party to any Transaction.
If you elect to register with us, you may log in to the Platform using a third-party login provider (e.g. Facebook), when such alternative is made available by Create Your Song. If you do not wish to log in using these third-party access credentials, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist us in authenticating your identity when you log in in the future (“Unique Identifiers”). Create Your Song may also collect Unique Identifiers in order for Create Your Song to better communicate with you.
You acknowledge that any registration information that you submit to Create Your Song is true, accurate, current and complete, and you agree to keep it that way at all times. Each Sign-In Name and corresponding Password can be used by only one User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier as well as of any actual or suspected breach of your account security. We will not be liable for any loss or damage caused by any unauthorized use of your account.
Create Your Song respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Platform, to make sure Create Your Song stays enjoyable for everyone. You must follow these rules and should encourage other users to do the same. You agree to comply with these user guidelines (the “Community Guidelines”) and that: (a) You will not upload, post, e-mail, transmit, or otherwise make available on the Platform (including when engaging with other users) any Submission or User Content (as defined below) that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity);
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information; or
- is intended to or does harass or bully other users.
(b) You will comply with all applicable laws in your use of the Platform and will not use the Platform for any unlawful purpose; (c) You will not access or use the Platform to collect any market research for a competing business or use the Platform to develop a competing product or service;
(d) You will not attempt to use the Platform or any of the resources provided therein to set up a Transaction outside the Platform, and any transactions resulting from introductions facilitated on the Platform shall be executed as Transactions on the Platform; (e) You will not provide false or misleading information as part of your profile or otherwise on the Platform;
(f) You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (g) You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Platform through hacking, password or data mining, or any other means; (h) You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform, except where such restriction is expressly allowed by applicable law;
(i) You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform; (j) You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Platform, nor obscure or remove any proprietary rights notices;
- You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will behave and communicate in a professional and respectful manner with other Users. Aggressive or inappropriate language and/or behaviour will not be tolerated; and (n) You will not post your or someone else’s personal contact information on the Platform (other than where specifically requested by us). Such personal contact information includes, without limitation, your email address, phone number, social-media profile links, other web-addresses or identifiers.
If you find items posted to the Platform that you believe may violate, or if you believe another User may be violating, any of these Community Guidelines, please let us know by sending an email to us at info@Createyoursong.com.
Using our service
Rights you grant to us
In consideration for the rights granted to you under the Agreement, unless otherwise agreed and to the extent allowed under applicable law, you grant us the right (1) to provide advertising and other information to you, and (2) to allow our business partners to do the same.
The Platform contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Create Your Song, including User Content, (collectively referred to as the “Content ”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
You may view Content for your own personal, non-commercial use. No other use is permitted without the prior written consent of Create Your Song. Except as expressly provided for User Content and Project Content, Create Your Song and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, modify, reproduce, display or perform (publicly or otherwise), make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access the Content and the Platform automatically terminates and you must immediately cease accessing the Content and the Platform and destroy any copies that you have made of the Content.
All Create Your Song trademarks, service marks, trade names, logos, domain names, and any other features of the “Create Your Song” brand (“Create Your Song Brand Features”) are the sole property of Create Your Song or its licensors. The Agreement does not grant to you any rights to use any Create Your Song Brand Features, whether for commercial or non-commercial use; any such right to use requires our express written permission. Without limiting the foregoing, all goodwill generated from the use of Create Your Song Brand Features inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
User Content and Project Content
Our Platform allows users to post Content as well as to share Content relating to a Project with each other. You understand the difference between User Content (content that you publish on the Platform) and Project Content (content related to a Project), as described in detail in sections 7.1 and 7.2 below.
YOU ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT AND PROJECT CONTENT THAT YOU UPLOAD, SUBMIT, E-MAIL, OR OTHERWISE TRANSMIT (“POST”) VIA THE PLATFORM OR OUR SOCIAL MEDIA PAGES. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST Create Your Song RELATED TO USER CONTENT OR PROJECT CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD Create Your Song (INCLUDING ANY AFFILIATE OF Create Your Song) HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
Users may publish content to the Platform (for example when creating a profile or posting a Project description) such as pictures, text, information, descriptions and compilations, audio (including Tracks) and/or other types of content (“User Content”). You expressly acknowledge and agree that once you post your User Content, it may be accessible to others.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby grant to us and our designees a non-exclusive, worldwide, royalty-free, freely sublicensable (through multiple tiers), irrevocable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, display and perform (public or otherwise), and otherwise use (including for profit) such User Content, and all intellectual property and moral rights therein, throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, on or in connection with the Platform and in order to advertise and promote the Platform, Create Your Song, and our products and services.
You also grant to us and our designees the non-exclusive right, but not the obligation, to use, and to authorize others to use, your name, likeness, image, persona, voice, and photograph (“Likeness”) in connection with any use or exploitation of any related User Content permitted under the license granted in the prior sentence and/or to advertise and promote the Platform, Create Your Song, and our products and services . Without limiting the foregoing, you acknowledge and agree that use of your User Content and/or Likeness permitted by the foregoing rights and licenses may include the display of such User Content, name, likeness, image, persona, voice, and photograph adjacent to advertising and other material or content, including for profit. If you submit or otherwise post User Content to the Platform, each such post constitutes a representation and warranty to Create Your Song that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that it and its use as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
We may, but have no obligation to, monitor, scan, intercept, review, analyze, alter, edit or remove information or User Content (including any messages, information, or other content or materials sent to you, or received by you, in connection with the Platform or its features or functionalities), at any time, including while it is in transit, and before and after it is stored or made available through the Platform, and to monitor, review or analyze your access to or use of the Platform, in each case by manual, automated or other means, and in each case for any purpose. In all cases, we reserve the right to remove or disable access to any User Content for any or no reason, including User Content that, in our sole discretion, violates the Agreement.
All creative materials provided by the Recipient to the Creator in furtherance of a Project, as well as any Submission that Creator creates and/or performs in connection with a Project Transaction, is defined as “Project Content”. You retain all copyrights and other intellectual property rights in and to your own Project Content, unless otherwise agreed in the Project Terms.
Except as required or permitted under applicable law or to the extent needed to provide the services or assist users under this Agreement, Create Your Song will not make any use of Project Content, whether such materials are for a finalized Submission, or works-inprogress leading up to a finalized Submission.
Unless otherwise agreed in the applicable Project Terms, a Recipient shall not utilize the name, likeness or other identifying information of the Creator (including, but not limited to, stating that a completed work incorporates a Creator’s work or “features” the particular Creator) and a Creator shall not utilize the name, likeness or other identifying information of the Recipient.
With respect to all ideas, comments, proposals, suggestions, or other feedback that you send to us (“Feedback”), you acknowledge and agree that we shall be free to use such Feedback, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you, and that all such Feedback shall not be confidential.
YOU UNDERSTAND AND AGREE THAT THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, INCLUDING THAT THE PLATFORM OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM Create Your Song SHALL CREATE ANY WARRANTY ON BEHALF OF Create Your Song. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
To the extent you are deemed to be a consumer under applicable law, this section does not affect your statutory rights as a consumer.
Limitation of liability
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE PLATFORM (INCLUDING ITS FEATURES, FUNCTIONS AND CONTENT) IS TO STOP USING THE PLATFORM. YOU AGREE THAT Create Your Song HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE PLATFORM, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO Create Your Song, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS. IN NO EVENT WILL Create Your Song OR ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, DEVICES, THIRD PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER Create Your Song HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM OR THE CONTENT SHALL BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) OR (B) THE AMOUNTS YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. Create Your Song ASSUMES NO LIABILITY FOR ANY ACTS OR OMISSIONS OF CREATOR. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Third Party Materials
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites or any information or other content made available thereon. The content of such External Sites is developed and provided by third parties and not by Create Your Song. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk. We are not responsible for, and make no representations regarding: (i) the advertisements or any other third-party material posted on the Platform or any of our social media pages; or (ii) the products or services provided by advertisers. Any dealings or interactions you have with advertisers, advertisements, other third parties, or other third-party materials while using the Platform are between you and the advertiser or other third party, and you agree that Create Your Song is not liable for any loss or claim that you may have against such parties.
Representations and warranties
You hereby represent, warrant, and covenant that:
- You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and Project Content, and any other works that you incorporate into your User Content and Project Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
- Use of your User Content or Project Content in the manner contemplated under this Agreement shall not infringe, violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party;
- You shall not post to the Platform or any of our social media pages any User Content or Project Content that violates our Community Guidelines set forth above or any other term of this Agreement; and
- You shall abide by the terms and conditions of any Transaction you enter into, including any Track Terms.
You agree to defend, indemnify, and hold us and our affiliates, and our and their officers, directors, employees, agents, successors, licensees, licensors, and assigns, harmless from and against all claims, actions, demands, damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (1) your breach or alleged breach of this Agreement;
(2) any Transaction you enter into or any User Content or Project Content you post; (3) any activity in which you engage on or through the Platform; (4) your violation of any law or the rights of a third party; and (5) any dispute, action or claim between you and another User of the Platform.
We reserve the right to assume the exclusive defense and control
(at your expense) of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. You agree not to involve Create Your Song in any dispute you may have with another User.
Term and Termination of the Agreement
The Agreement will continue to apply to you until terminated by either you or Create Your Song. We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to and use of all or any part of the Platform, at any time and for any reason without prior notice or liability. All provisions of this Agreement which by their nature should survive termination will survive the termination of this Agreement, including, without limitation Section 3 (second paragraph), 3.1 (second paragraph), 4 (third paragraph), 6, 7, 8, 9, 10, 11, 12, 13, 15 17 and 18.
Premium Providers and the Job Board
Creators may also request an opportunity to become “Premium Providers”. We will require each such Creator to complete an application and participate in our review process, in order to determine whether, in our sole discretion, such Creator is eligible to become a Premium Provider.
For so long as a Creator is a Premium Provider, such Creator shall be charged our then-current recurring fee in order to maintain such Creator’s status as a Premium Provider (the “Recurring Premium Provider Fee”). Additionally, Premium Providers are granted the then-current amount of “Proposal Credits” every month, which may be spent to send Project proposals to prospective Recipients on the Create Your Song Job Board as described below. Additionally, when potential Recipients search for potential Creators, Premium Providers may be elevated higher than other Creators on the list of search results.
In addition to Recipients and Creators using the Platform to make and accept private Project proposals, prospective Recipients may post Project requests to the Create Your Song Job Board without Create Your Song charging anything for such post. Only Premium
Providers may respond to such Project requests posted to the Create Your Song Job Board in exchange for one Proposal Credit. Unused Proposal Credits shall roll-over to subsequent months, for so long as a Creator is a Premium Provider and expires as expressly set out by Create Your Song. In case your Premium Provider status is terminated either by you or Create Your Song, any unused Proposal Credits will expire. Premium Providers may elect to purchase additional Proposal Credits through the Website at any time. Proposal Credits are non-transferable and non-refundable. If you are currently a Premium Provider, you shall be notified of any increases to Create Your Song’s Recurring Premium Provider Fees. It is important to note that, on the day that your status as a Premium Provider is activated, you will be automatically charged Create Your Song’s then-current Recurring Premium Provider Fee. Thereafter, your status will automatically renew and you will be charged on recurring basis until you request to cease being a Premium Provider as provided below, or have your status revoked by Create Your Song. Create Your Song has the right to increase the price of the Recurring Premium Provider Fee from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes.
You may cancel your Premium Provider status at any time by notifying us in writing. The cancellation will take effect the day after the last day of the current subscription period, after which you will no longer be deemed a Premium Provider. If your Premium Provider status is terminated, except for in cases when the termination is due to your violation of the Agreement, Create Your Song shall provide a pro-rata refund of the Recurring Premium Provider Fee for the then-current period, but shall not provide a refund for any Proposal Credits.
Create Your Song reserves the right, in Create Your Song’s reasonable discretion, to revoke a User’s status as a Premium Provider at any time, without notice and with immediate effect, for violation of this Agreement. If such status is revoked with immediate effect, Create Your Song will not refund any amounts that you have already paid for the remaining then-current subscription period, to the fullest extent permitted under applicable law.
We make no representations regarding these form agreements or the use thereof, and, to the maximum extent allowed by law, disclaim all responsibility or liability arising from such form agreements and the use thereof. You acknowledge and agree that, in making any form agreement available to you, as well as in relation to the Track Terms, we are not providing legal advice, and you agree to consult with an attorney before entering into any Transaction, whether or not you choose to use a form agreement made available by Create Your Song. You further acknowledge and agree that every Transaction is unique, and any form agreement will need to be customized, with input from your attorney, to address the unique aspects of any Transaction for which it is being used.
In addition, you acknowledge and agree:
- We make no attempt to confirm, and do not confirm, any User’s purported identity. You are solely responsible for determining the identity and suitability of other Users whom you may contact and work with via the Platform.
- We make no representations, offer no assurances, and do not investigate the backgrounds, morality, character, skills, or capabilities of any User (including any Creator, Recipient or Premium Provider), and you hereby acknowledge that you assume the risk of any encounter or interaction with such persons. We encourage all Users to determine the suitability of, as applicable, Creators and Recipients for Projects by communicating directly with other Users through the tools available on the Platform; reviewing their profile pages for feedback from other Users; and conducting any other diligence appropriate under the circumstances.
- Although we reserve the right to do so, we have no obligation to, and typically do not, verify information, materials and other User Content that Users post to the Platform.
- We do not endorse any Users or any Tracks.
Create Your Song respects the rights of intellectual property owners. If you believe that any Content infringes your copyright rights, see Create Your Song’s FAQ on Copyright infringement .
Choice of law, mandatory arbitration, and venue
Governing Law and Jurisdiction
This Agreement (and any disputes or claims relating to or arising in connection with the Platform) will be governed by and construed in accordance with the laws of the State of New York, United States of America, without regard to its choice or conflict of law principles. Further, you and Create Your Song agree that any dispute, claim or controversy that relates to or arises in connection with this Agreement (including any disputes or claims relating to or arising in connection with the Platform) that is not subject to mandatory arbitration under section 17.2 below shall be brought solely in the state or federal courts located in the Borough of Manhattan, New York. You hereby consent to the exclusive jurisdiction and venue of such courts, and waive any defense of forum inconveniens in connection therewith.
The dispute resolution and arbitration provisions set forth in Sections 17.2 – 17.7 apply only to Users in the United States.
Dispute resolution and arbitration
You and Create Your Song each agree that any dispute, claim, or controversy between you and Create Your Song arising in connection with or relating in any way to this Agreement or to your relationship with Create Your Song as a user of the service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms) will be determined by mandatory binding individual (not class) arbitration. You and Create Your Song further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this Section 17 or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of this Agreement.
Notwithstanding the provision above (17.2), you and Create Your Song both agree that nothing in this Section 17 will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Section 17 doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
No Class Or Representative Proceedings: Class Action Waiver
YOU AND Create Your Song AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Create Your Song agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Either you or we may commence arbitration proceedings hereunder.
If you are not an Organization, a representative of an Organization or a music industry professional, the following will apply:
Any arbitration between you and Create Your Song will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”) , as modified by this Section 17. You and Create Your Song agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Create Your Song can also help put you in touch with the AAA.
Any arbitration hearings will take place in the county (or parish) of your billing address, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
If you choose to file an arbitration proceeding and you are required to pay a filing fee, Create Your Song will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee. Create Your Song will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. 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 decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
If you are an Organization, a representative of an Organization or a music industry professional, the following will apply: Any arbitration between you and Create Your Song will take place under AAA’s Commercial Arbitration Rules, as modified by this Section 17. You and Create Your Song agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in the Borough of Manhattan, New York.
A party who intends to seek arbitration hereunder must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Create Your Song’s address for Notice is: Create Your Song Inc. Attn: General Counsel, CYS Center, 150 Greenwich Street, 62nd Floor, New York, New York 10007, USA . The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Create Your Song may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Create Your Song shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Create Your Song’s last written settlement offer, then Create Your Song will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If this Section 17 is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 17.1 shall govern any claim in court arising out of or related to this Agreement.
Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Create Your Song may assign the Agreement, and any of its rights under the Agreement, in whole or in part, and Create Your Song may delegate any of its obligations under the Agreement. You may not assign the Agreement, in whole or in part, nor transfer or sub-license your rights under the Agreement, to any third party.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Create Your Song’s services may be subject to U.S. export and reexport control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in any country to which the United States has embargoed goods or has otherwise applied any economic sanctions; and (2) not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in other jurisdictions.
You agree to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR.
Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Create Your Song under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
Changes to Platform
We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
You are not, and shall not present yourself as, (a) an employee, contractor, or agent of Create Your Song, or (b) affiliated in any way with Create Your Song, in any capacity (whether on business cards, socialmedia, or on any other websites or media).