WELCOME TO WÃVESCOOL! PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF WÃVESCOOL, INC., ITS AFFILIATES OR AGENTS (“wãvescool”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY WÃVESCOOL OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS FOR AN ACCOUNT (AS DEFINED BELOW), DOWNLOADING WÃVESCOOL’S MOBILE APPLICATION (“APPLICATION”), AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE AT LEAST THIRTEEN (13) YEARS OF AGE, AND IF YOU ARE BETWEEN 13 AND 18, YOU ARE USING THE SERVICE UNDER THE SUPERVISION OF A PARENT OR GUARDIAN WHO IS AGREEING TO BE BOUND BY THE TERMS OF USE, (3) IF YOU ARE A PARENT OR GUARDIAN OF A USER WHO IS BETWEEN 13 AND 18, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS TERMS OF USE AND SHALL BE RESPONSIBLE FOR THE MINOR USER’S ACTS OR OMISSIONS WITH RESPECT TO THE SERVICE; and (4) YOU ARE NOT A PERSON BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE OR APPLICATION.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, THE APPLICATION, OR THE SERVICES.

WE CURRENTLY OFFER A SUBSCRIPTION TO ARTISTS. IF YOU SUBSCRIBE TO THE SERVICES ON A MONTHLY BASIS, THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL MONTH PERIODS AT WÃVESCOOL’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6 BELOW.

THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY WÃVESCOOL IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, wãvescool will make a new copy of the Terms of Use available at the Website and within the Application, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website and within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Terms will be effective immediately for new Users of the Website, the Application, and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Website and within the Application for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4.1 below).  wãvescool may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application, and/or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application, and/or the Services.  Otherwise, your continued use of the Website, the Application, and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. How Our Services Work.  wãvescool provides a platform that allows artists (“Artists”) who create and own certain musical works and/or sound recordings to upload such works (such uploaded work, referred to herein as “Artist Works”) and match with certain social media influencers (“Trendsetters”) who will agree to leverage their social networks in order to promote the Artist Works, in exchange for a royalty that is decided upon among the applicable Artist, Trendsetter, and wãvescool.  wãvescool uses a custom algorithm to match Artist Works with Trendsetters, based on, among other factors, the musical genre of Artist Works and the demographic of the Trendsetter’s social media followers, in an effort to maximize the visibility of the Artist Works to a meaningful audience. Depending on your subscription tier you select (as described on our Pricing Page), wãvescool may also engage in direct promotion of the Artist Works by distributing the Artist Works to third-party music streaming platforms and/or e-retailers (“Music Platforms”), in exchange for a royalty, as further described in the “Payments” section below.
  2. Use of the Services and wãvescool Properties.  The Website, the Application, the Services, and the information and content available on the Website, the Application, and the Services (as these terms are defined below) (collectively, the “wãvescool Properties”) are protected by copyright laws throughout the world.  Subject to the Terms, wãvescool grants you a limited license to reproduce portions of the wãvescool Properties for the sole purpose of using the Services for your personal and/or professional purposes. Unless otherwise specified by wãvescool in a separate license, your right to use any wãvescool Properties is subject to the Terms.

2.1        Application License.  Subject to your compliance with the Terms, wãvescool grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.  Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

2.2        Updates.  You understand that the wãvescool Properties are evolving.  You acknowledge and agree that wãvescool may update the wãvescool Properties with or without notifying you.  You may need to update third-party software from time to time in order to receive the Services or use the wãvescool Properties.

2.3        Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the wãvescool Properties or any portion of the wãvescool Properties, including the Website and Application, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other wãvescool Properties (including images, text, page layout or form) of wãvescool; (c) you shall not use any metatags or other “hidden text” using wãvescool’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the wãvescool Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website or Application (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website or Application for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the wãvescool Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the wãvescool Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the wãvescool Properties. Any future release, update or other addition to the wãvescool Properties shall be subject to the Terms.  wãvescool, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of the wãvescool Properties terminates the licenses granted by wãvescool pursuant to the Terms.

2.4        Third-Party Materials.   As a part of the wãvescool Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for wãvescool to monitor such materials and that you access these materials at your own risk.

  1. Registration.

3.1        Registering Your Account.  In order to access certain features of the wãvescool Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is a User who has registered a user account on the Website or Application (each an “Account”).

3.2        Access Through a Third-Party Account.  You may be asked to link your Account with one (1) or more valid account on social networking services (each such account, a “Third-Party Account”), by allowing wãvescool to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to grant wãvescool access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating wãvescool to pay any fees or making wãvescool subject to any usage limitations imposed by such third-party service providers.  By granting wãvescool access to any Third-Party Accounts, you understand that wãvescool may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the wãvescool Properties (“Content”) that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through the wãvescool Properties via your Account.  Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content (as defined in Section 8.1) for all purposes of the Terms.  Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the wãvescool Properties. Please note that if a Third-Party Account or associated service becomes unavailable or wãvescool’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through the wãvescool Properties.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website or within the Application.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WÃVESCOOL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  wãvescool makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and wãvescool is not responsible for any Third-Party Account Content.

3.3        Registration Data.  In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You are responsible for all activities that occur under your Account (and if you are a parent or guardian supervising a minor user, you are responsible for all activities that occur under such minor user’s Account).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree not to create an Account or use the wãvescool Properties if you have been previously banned from the wãvescool Properties.

3.4        Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the wãvescool Properties.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the wãvescool Properties.

  1. Trendsetter-Specific Terms.  When agreeing to promote Artist Works, the following terms apply:

4.1        Once you have initiated a deal to promote a specified Artist and certain of Artist’s specified Artist Works, and the Artist has accepted the terms of such promotion (“Deal”), you agree to use commercially reasonable efforts to promote the Artist Works as agreed to by wãvescool, the applicable Artist, and Trendsetter, during the agreed upon time period.  You grant to the applicable Artist the right and license to use the photos, videos, and other social media content and materials and information you create in connection with promoting the Artist and/or Artist Works (“Promotional Content”), in whole or in part, in connection with Artist’s advertisement and promotion of itself and the Artist Works, as well as in connection with exercising Artist’s rights hereunder. If you fail to meet the minimum promotion requirements or any other terms of a Deal, then that Deal may be terminated at wãvescool’s option.

4.2        You agree that you will be paid royalties on the exploitation of the Artist Works through the Website, the Application, and Services, in an amount equal to the agreed upon royalty scale presented on the Deal page, based on your performance and reach for such Artist Works.

4.3        You will obtain, at your expense, all third-party rights, licenses, clearances, authorizations, permissions and releases, necessary for any Promotional Content to be publicly displayed, except with respect to the Artist Marks and the Artist Works.

4.4        You covenant that any and all Promotional Content, including but not limited to digital and/or social media postings, communications or statements effected by or on behalf of Trendsetter hereunder will be effected in a manner that complies with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising – LINK HERE), as well as the rules, regulations and policies of each applicable digital and/or social media platform, including with respect to disclosures necessary to clearly and conspicuously indicate to consumers that you have received consideration in exchange therefor.

4.5        Trendsetter will comply with all rules, regulations and requirements of any union or guild having jurisdiction over Trendsetter, including by making any payments (including health and pension payments) required by any union or guild in respect of such individuals.

  1.  Artist-Specific Terms.  When accepting a Trendsetter’s Deal, the following terms apply:

5.1        The license you grant to wãvescool in Section 9.5 with respect to the Artist Works (including both the applicable sound recording and composition embodied therein) that is subject to the Deal is exclusive (including as to you), and you authorize wãvescool to collect any and all Gross Revenues (defined in Section 6.2).  Without limiting the foregoing, you will take all actions necessary to accomplish the intent of the foregoing, including notifying all performing rights organizations and collecting societies of the rights granted to wãvescool and issuing letters of direction, as applicable, with respect to payments.  For clarity, Artist will ensure that wãvescool collects the writer and publisher share of any performing rights royalties.

5.2        You grant to the Trendsetter and to wãvescool the right and license to use the trademarks, service marks, publicity rights, privacy rights, names, images, likenesses, biographical details, indicia of identity, and logos in connection with Trendsetter’s and wãvescool’s advertisement and promotion of Artist and the Artist Works, and with respect to wãvescool, in connection with wãvescool’s products and services.

5.3        You agree that you will owe royalties to Trendsetter with respect to the promoted Artist Works, in an amount equal to the agreed upon royalty scale presented on the Deal page, based on the performance and reach of the Trendsetter, and that wãvescool may pay those royalties on your behalf.

5.4        You will be solely responsible for the acquisition of any and all third party clearances, permissions and licenses which are necessary for the licenses granted in the Terms, including with respect to the use of any copyrighted or trademarked materials (e.g., Artist Works), and for the payment of any and all applicable guild fees and for any and all residuals, payments, fees or royalties, if any, payable under any collective bargaining agreement or otherwise.

5.5        You represent and warrant that (a) each Artist Work is an original work and that neither the Artist Work, or any part thereof, including the original composition, infringes upon the title, literary, or musical property or copyright of any other work nor the statutory, common law or other rights (including rights or privacy and publicity) of any third party or violates any applicable criminal statute, (b) you are either the sole writer and composer and the sole owner of each Artist Work and of all the rights therein or you have the right and authority to grant the rights to the Artist Work on a full-work (100%) basis and no other licenses, permissions or authorizations are required to be obtained by wãvescool from any third party for the exercise of its rights to the Artist Works, (c) and that you have not sold, assigned, transferred, hypothecated or mortgaged any right, title, or interest in or to the Artist Work or any part thereof or any of the rights herein conveyed; and (c) that you have not entered into any agreement with any third party affecting the Artist Works or any right, title, or interest therein or in the copyright thereof and no third party has or had any claims or has claimed any right, title, or interest in or to the Artist Works or any part thereof, any use thereof, or any copyright therein.   You will indemnify and hold wãvescool, Trendsetter, and its and their affiliates’, respective officers, employees, and agents harmless from and against any and all suits, actions, losses, costs (including attorneys’ fees), liabilities, damages, and expenses arising from or relating to any claim or demand arising out of or related to any breach of any representation or warranty in this Section 5.5.

5.6        If a Deal is terminated, then Artist may select to continue to allow wãvescool to administer the Artist Work on an exclusive basis, subject to an administration fee retained by wãvescool.  In such a case, Artist may terminate the exclusive grant upon 45 days’ notice to wãvescool.

  1. Payments.

6.1        Payments by Artist.

(a)         As an Artist, you agree to pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide wãvescool with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) in order to subscribe to our Services on a monthly basis.  Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing wãvescool with your credit card number or PayPal account and associated payment information, you agree that wãvescool is authorized to immediately invoice your account for all fees and charges due and payable to wãvescool hereunder and that no additional notice or consent is required.  You agree to immediately notify wãvescool of any change in your billing address or the credit card or PayPal account used for payment hereunder.  wãvescool reserves the right at any time to change its prices and billing methods, either immediately upon posting on wãvescool Properties or by e-mail delivery to you.

(b)        Service Subscription Fees You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create select your subscription tier package (each, a “Service Commencement Date”).  Except as set forth in the Terms, all fees for the Services are non-refundable.  No contract will exist between you and wãvescool for the Services until wãvescool accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

(c)         Automatic Renewal.  Your subscription will continue indefinitely until terminated in accordance with the Terms.  After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at wãvescool’s then-current price for such subscription.  You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from wãvescool that your subscription will be automatically renewed, you will have thirty days from the date of wãvescool notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.  If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, you can manage your subscription at  manage.wavescool.com.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize wãvescool to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if wãvescool does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that wãvescool may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment,  your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

6.2        Payments to Artist and TrendsetterArtist acknowledges and agrees that wãvescool is entitled to collect the Gross Revenues, and that prior to paying Artist and Trendsetter the royalty specified in the applicable Deal, wãvescool will deduct any credit card processing fees associated with the payment by wãvescool to Artist or Trendsetter of such Gross Revenues, and wãvescool shall retain a percentage of the Gross Revenues. The royalty (in each instance of Artist and Trendsetter) will be a percentage of the Gross Revenue earned by the applicable Artist Work.  If, for any reason, wãvescool is unable to collect any or all Gross Revenues, then Artist will pay to wãvescool all Gross Revenues, less Artist’s agreed-upon share in a mutually agreeable manner. “Gross Revenues” means all revenue received by wãvescool from downloads and/or streams of the applicable Artist Works on the Music Platforms, as well as any subscription services (if any), advertising revenue, and all other revenue sources, during the term specified in the Deal.  Where wãvescool is required to make a payment to Artist or Trendsetter hereunder, wãvescool will not be required to make any such payment to Artist or Trendsetter via PayPal until Artist’s or Trendsetter’s aggregate payments exceed five U.S. dollars (USD 5.00) or via wire transfer until Artist’s or Trendsetter’s aggregate payments exceeds one hundred U.S. dollars (USD 100.00).

6.3        Independent Contractor Status / Taxes.  Nothing herein creates a partnership, joint venture, employer/employee or other relationship between the parties other than that of independently contracting parties. You shall be solely responsible for any and all taxes payable in connection with monies paid to you by wãvescool hereunder. All payments made in connection with these Terms are exclusive of taxes imposed by governmental entities of whatever kind and imposed with respect to the transactions for services provided under these Terms.

6.4        Free Trials and Other Promotions.  Any free trial or other promotion that provides access to special features and functions of the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact wãvescool to have the charges reversed.

6.5        Advertising Revenue.  wãvescool reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that wãvescool has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by wãvescool as a result of such advertising.

6.6        Disputes.  You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: billing@wavescool.com.

6.7        Third Party Provider.  wãvescool uses Stripe, Inc. as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services).  By buying or selling on the wãvescool Properties, you agree to be bound by Stripe’s Privacy Policyhttps://stripe.com/privacy and hereby consent and authorize wãvescool and Stripe to share any information and payment instructions you provide with third-party service providers to the minimum extent required to complete your transactions.

  1. Release.  wãvescool expressly disclaims any liability that may arise between Users of its Services, including with respect to any Deal made between the Trendsetter and Artist via the Services.  The Services are a venue for connecting Users and for connecting Artists and Trendsetters. wãvescool does not itself make any guarantees with respect to the Services made available through the Website or the Application, including the visibility or reach of Artist Works, the compatibility of an Artist with a matched Trendsetter, Trendsetter’s performance of any promotional services on behalf of Artist, or that Trendsetter will earn any amount, or any minimum amount, of royalties from its promotion of Artist Works.  In the event that you have a dispute with one or more Users or with a third party in relation to a Deal, you release wãvescool (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
  2. Responsibility for Content.

8.1        Types of Content.  You acknowledge that all Content, including the wãvescool Properties, is the sole responsibility of the party from whom such Content originated.  This means that you, and not wãvescool, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise share or make available (“Make Available”) through the wãvescool Properties, including Artist Works (with respect to Artists) or Promotional Content (with respect to Trendsetters) (“Your Content”), and that you and other Users of the wãvescool Properties, and not wãvescool, are similarly responsible for all Content they Make Available through the wãvescool Properties (“User Content”).

8.2        No Obligation to Pre-Screen Content You acknowledge that wãvescool has no obligation to pre-screen Content (including, but not limited to, User Content or Deals), although wãvescool reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Terms, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation messages that you send using the Services.  In the event that wãvescool pre-screens, refuses or removes any Content, you acknowledge that wãvescool will do so for wãvescool’s benefit, not yours.  Without limiting the foregoing, wãvescool shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

8.3        Storage Unless expressly agreed to by wãvescool in writing elsewhere, wãvescool has no obligation to store any of Your Content that you Make Available on the wãvescool Properties.  wãvescool has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the wãvescool Properties.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for applying the appropriate level of access to Your Content.  If you do not choose, the system may default to its most permissive setting.  You agree that wãvescool retains the right to create reasonable limits on wãvescool’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by wãvescool in its sole discretion.

  1. Ownership.

9.1        wãvescool Properties.  Except with respect to Your Content and User Content, you agree that wãvescool and its suppliers own all rights, title and interest in the wãvescool Properties (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Application, the Services, or the wãvescool Properties.

9.2        Trademarks. “wãvescool” and other related graphics, logos, service marks and trade names used on or in connection with the wãvescool Properties are the trademarks of wãvescool and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in the wãvescool Properties are the property of their respective owners.

9.3        Other Content.  Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the wãvescool Properties.

9.4        Your Content.  wãvescool does not claim ownership of Your Content.  However, when you as a User post or publish Your Content on or in the wãvescool Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

9.5        License to Your Content.  Subject to any applicable account settings that you select, you grant wãvescool a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part), in any medium or manner, now known or hereafter devised, for the purposes of operating and providing the wãvescool Properties to you and to our other Users (including the right to grant Trendsetters a license to Artist Works, subject to a Deal).  Without limiting the generality of the foregoing, Artist grants to wãvescool the right to make the Artist Works available for streaming and/or download on the Music Platforms, reproduce the Artist Works on computer servers or other storage media owned or controlled by or on behalf of wãvescool, and transmit, communicate to the public, and publicly perform the Artist Works, including on a through-to-the-audience basis, on a streaming or downloadable basis. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the wãvescool Properties.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not wãvescool, are responsible for all of Your Content that you Make Available on or in the wãvescool Properties.

9.6        Your Account.  Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of wãvescool.

9.7        Your Profile Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter.  You may not post or submit for print services a photograph of another person without that person’s permission.

9.8        Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to wãvescool through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that wãvescool has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to wãvescool a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the wãvescool Properties.

9.9        Reviews.  The Services host User Content that is related to reviews of certain Users.  Such reviews are opinions and are not the opinion of wãvescool, have not been verified by wãvescool, and each User should undertake his or her own research to be satisfied concerning any specific User.  You agree that wãvescool is not liable for such User Content.  wãvescool shall have the right, but not the obligation to monitor or review any reviews at any time. wãvescool reserves the right to refuse to post or remove any material submitted or posted in any review. Notwithstanding the foregoing, you acknowledge that wãvescool is under no obligation to edit or modify any information available in any reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a review. wãvescool does not assume liability for reviews or for any claims for economic loss resulting from such ratings and reviews.

  1. User Conduct.  While using or accessing the wãvescool Properties you agree that you will not, under any circumstances:

(a)         Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;

(b)        Interfere with or damage wãvescool Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

(c)         Fail to honor any Deal offered to or agreed to by you, unless the Artist or Trendsetter, as applicable, fails to comply with the Deal terms;

(d)        Post false, inaccurate, misleading, defamatory or libelous content;

(e)         Take any action that may undermine our feedback or ratings systems;

(f)          Bypass our robot exclusion headers, interfere with the working of the wãvescool Properties, or impose an unreasonable or disproportionately large load on our infrastructure;

(g)        Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(h)        Use the wãvescool Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or

(i)          Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; or (vi) infringes a third party’s intellectual property or privacy or other proprietary right.

  1. Confidentiality.

11.1    Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services and wãvescool Properties will be considered Confidential Information of wãvescool.

11.2    Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Terms of Use. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of these Terms, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under these Terms, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

11.3    Exceptions. The confidentiality obligations set forth in Section 11.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under these Terms or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  1. No Solicitation.  The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through the wãvescool Properties.  You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of wãvescool.
  2. Investigations.  wãvescool may, but is not obligated to, monitor or review the wãvescool Properties and Content at any time.  Without limiting the foregoing, wãvescool shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law.  Although wãvescool does not generally monitor user activity occurring in connection with the wãvescool Properties or Content, if wãvescool becomes aware of any possible violations by you of any provision of the Terms, wãvescool reserves the right to investigate such violations, and wãvescool may, at its sole discretion, immediately terminate your license to use the wãvescool Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
  3. Interactions with Other Users.

14.1    User Responsibility.  You are solely responsible for your interactions with other Users of the wãvescool Properties and any other parties with whom you interact through the wãvescool Properties; provided, however, that wãvescool reserves the right, but has no obligation, to intercede in such disputes.

14.2    Content Provided by Other Users.  The wãvescool Properties may contain User Content provided by other Users.  wãvescool is not responsible for and does not control User Content.  wãvescool has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content.  You use all User Content and interact with other Users at your own risk.

  1. Third-Party Services.

15.1    Third-Party Services & Ads. The wãvescool Properties may contain links and/or integrate with third-party websites and/or services (“Third-Party Services”) and advertisements for third parties (“Third-Party Ads”) (collectively, “Third-Party Services & Ads”).  For example, we may use a Third-Party Service to help us distribute your Artist Works to Music Platforms. When you click on a link to or otherwise access a Third-Party Service or a Third-Party Ad, we will not warn you that you have left the wãvescool Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Services are not under the control of wãvescool.  wãvescool is not responsible for any Third-Party Services & Ads.  wãvescool provides these Third-Party Services & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services & Ads, or their products or services.  You use Third-Party Services & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.

15.2    App Stores.  You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”).  You acknowledge that the Terms are entered into between you and wãvescool and not with the App Store.  wãvescool, not the App Store, is solely responsible for wãvescool Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with wãvescool Properties, including the Application.  You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any wãvescool Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce it.

15.3    Additional Terms for Apple Applications.  The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

(a)         You acknowledge and agree that (i) the Terms are concluded between you and wãvescool only, and not Apple, and (ii) wãvescool, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b)        You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c)         In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between wãvescool and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of wãvescool.

(d)        You and wãvescool acknowledge that, as between wãvescool and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e)         You and wãvescool acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between wãvescool and Apple, wãvescool, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

(f)          You and wãvescool acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(g)        Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

15.4    Additional Terms for Google Applications. The following applies to any Google Play Sourced Application accessed through or downloaded from Google Play:

(a)         You acknowledge and agree that (i) the Terms are concluded between you and wãvescool only, and not Google, Inc. (“Google”), and (ii) wãvescool, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the Google Play Sourced Application must comply with the Google Play Terms of Service.

(b)        Google is only a provider of Google Play where you obtained the Google Play Sourced Application.

(c)         wãvescool, and not Google, is solely responsible for its Google Play Sourced Application;

(d)        Google has no obligation or liability to you with respect to wãvescool’s Google Play Sourced Application or these Terms; and

(e)         You acknowledge and agree that Google is a third-party beneficiary to the Terms as it relates to wãvescool’s Google Play Sourced Application.

  1. Indemnification. You agree to indemnify and hold wãvescool, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “wãvescool Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the wãvescool Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations.  wãvescool reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with wãvescool in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the wãvescool Properties.
  2. Disclaimer of Warranties.

17.1    As Is.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WÃVESCOOL PROPERTIES IS AT YOUR SOLE RISK, AND THE WÃVESCOOL PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  WÃVESCOOL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

(a)         WÃVESCOOL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WÃVESCOOL PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WÃVESCOOL PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WÃVESCOOL PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WÃVESCOOL PROPERTIES WILL BE CORRECTED.

(b)        ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WÃVESCOOL PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WÃVESCOOL PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c)         THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  WÃVESCOOL MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

(d)        NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WÃVESCOOL OR THROUGH THE WÃVESCOOL PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(e)         FROM TIME TO TIME, WÃVESCOOL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT WÃVESCOOL’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

17.2    No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT WÃVESCOOL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WÃVESCOOL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

17.3    No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES. YOU UNDERSTAND THAT WÃVESCOOL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WÃVESCOOL PROPERTIES. WÃVESCOOL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE WÃVESCOOL PROPERTIES.  YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES.

(a)         WÃVESCOOL MAKES NO WARRANTY THAT ANY ARTIST OR TRENDSETTER, OR ANY RELATED DEALS, WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  WÃVESCOOL MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE WÃVESCOOL PROPERTIES.

(b)        WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES AMONG USERS THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF DEALS, THE TRUTH OR ACCURACY OF USERS’ CONTENT, THE ABILITY OF TRENDSETTERS TO INITIATE DEALS, THE ABILITY OF ARTISTS TO ACCEPT DEALS, OR THAT A TRENDSETTER WILL ACTUALLY HONOR A DEAL.

  1. Limitation of Liability.

18.1    Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WÃVESCOOL PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WÃVESCOOL PROPERTIESOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WÃVESCOOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WÃVESCOOL PROPERTIES; (2) ANY DEALS OFFERED THROUGH THE SERVICES; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WÃVESCOOL PROPERTIES; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (5) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON WÃVESCOOL PROPERTIES; OR (6) ANY OTHER MATTER RELATED TO THE WÃVESCOOL PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

18.2    Cap on Liability.  UNDER NO CIRCUMSTANCES WILL WÃVESCOOL PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WÃVESCOOL AS A RESULT OF YOUR USE OF THE WÃVESCOOL PROPERTIES IN THE SIX MONTHS PRECEEDING THE DATE ON WHICH YOU FIRST ASSERT YOUR CLAIM.  IF YOU HAVE NOT PAID WÃVESCOOL ANY AMOUNTS IN THE SIX MONTHS PRECEEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, WÃVESCOOL’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).

18.3    Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS  MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

18.4    User Content.  WÃVESCOOL PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

18.5    Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WÃVESCOOL AND YOU.

  1. Procedure for Making Claims of Copyright Infringement.  It is wãvescool’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to wãvescool by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the wãvescool Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the wãvescool Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for wãvescool’s Copyright Agent for notice of claims of copyright infringement is as follows:

Wãvescool

Attention: Rick Chapo, DMCA Agent

P.O. Box 373

Pine Valley, California 91962

Email: complaint@dmcaagentservice.com

  1. Term.

20.1    Term.  The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the wãvescool Properties, unless terminated earlier in accordance with the Terms.

20.2    Prior Use Notwithstanding the foregoing, if you used the wãvescool Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the wãvescool Properties (whichever is earlier) and will remain in full force and effect while you use the wãvescool Properties, unless earlier terminated in accordance with the Terms.

  1. Termination or Suspension of Services by wãvescool. wãvescool may terminate or suspend your right to use the wãvescool Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.  We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services.  Without limitation, wãvescool may terminate or suspend your right to use the wãvescool Properties if you breach any provision of the Terms or any policy of wãvescool posted through the wãvescool Properties from time to time; if wãvescool otherwise finds that you have engaged in inappropriate and/or offensive behavior; if wãvescool believes you are creating problems or possible legal liabilities; if wãvescool believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if wãvescool believes you are infringing the rights of third parties; if wãvescool believes you are acting inconsistently with the spirit of these Terms; or if despite our reasonable endeavors, wãvescool is unable to verify or authenticate any information you provide.  In addition to terminating or suspending your Account, wãvescool reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.  Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.

21.1    Termination of Services by You.  If you want to terminate the Services provided by wãvescool, you may do so by closing your Account for all of the Services that you use.

21.2    Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately.  You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Please note that we may be required to keep such information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements).  When we delete any information, it will be deleted from the active database, but may remain in our archives.  We may also retain your information for fraud or similar purposes. wãvescool will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

  1. Remedies.

22.1    Violations.  If wãvescool becomes aware of any possible violations by you of the Terms, wãvescool reserves the right to investigate such violations.  If, as a result of the investigation, wãvescool believes that criminal activity has occurred, wãvescool reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  wãvescool is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the wãvescool Properties, including Your Content, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; (5) protect the rights, property or personal safety of wãvescool, its Users or the public; or (6) in connection with all enforcement actions or investigations or other government officials, as wãvescool in its sole discretion believes to be necessary or appropriate.

22.2    Breach.  In the event that wãvescool determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the wãvescool Properties, wãvescool reserves the right to:

(a)         Warn you via e-mail (to any e-mail address you have provided to wãvescool) that you have violated the Terms;

(b)        Delete any of Your Content provided by you or your agent(s) to the wãvescool Properties;

(c)         Discontinue your registration(s) with any of the wãvescool Properties, including the Services or any wãvescool community;

(d)        Notify and/or send Content to, and/or fully cooperate with, the proper law enforcement authorities for further action; and/or

(e)         Pursue any other action which wãvescool deems to be appropriate.

22.3    No Subsequent Registration.  If your registration(s) with or ability to access the wãvescool Properties, or any other wãvescool community is discontinued by wãvescool due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the wãvescool Properties or any wãvescool community through use of a different member name or otherwise.  In the event that you violate the immediately preceding sentence, wãvescool reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

  1. International Users.  This Website and the Application can be accessed from countries around the world and may contain references to wãvescool Properties and Content that are not available in your country.  These references do not imply that wãvescool intends to announce such wãvescool Properties or Content in your country.  The wãvescool Properties are controlled and offered by wãvescool from its facilities in the United States of America.  wãvescool makes no representations that the wãvescool Properties are appropriate or available for use in other locations.  Those who access or use the wãvescool Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  2. Arbitration Agreement.

Please read this Arbitration Agreement carefully.  It is part of your contract with wãvescool and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a)         Applicability of Arbitration Agreement.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by wãvescool that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  Unless otherwise agreed, all arbitration proceedings will be held in English.  This Arbitration Agreement applies to you and wãvescool, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

(b)        Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to wãvescool should be sent to:

Wavescool, Inc.

          2029 Verdugo Blvd, Suite 276, Montrose CA 91020

After the Notice is received, you and wãvescool may attempt to resolve the claim or dispute informally.  If you and wãvescool do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c)         Arbitration Rules.  Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.  The JAMS Comprehensive Arbitration Rules and Procedures governing the arbitration are available online at http://www.jamsadr.com/ or by calling JAMS at 1-800-352-5267.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  If the arbitrator grants you an award that is greater than the last settlement offer that wãvescool made to you prior to the initiation of arbitration, wãvescool will pay you the greater of the award or $2500.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

(d)        Additional Rules for Non-Appearance Based Arbitration.  If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

(e)         Time Limits.  If you or wãvescool pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.

(f)          Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and wãvescool, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and wãvescool.

(g)        Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and wãvescool in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WÃVESCOOL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(h)        Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE ARTIST, TRENDSETTER, OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER ARTIST, TRENDSETTER, OR USER.

(i)          Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the statement of decision and award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(j)          Severability.  If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

(k)         Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

(l)          Survival of Agreement.  This Arbitration Agreement will survive the termination of your relationship with wãvescool.

(m)       Small Claims Court.  Notwithstanding the foregoing, either you or wãvescool may bring an individual action in small claims court.

(n)        Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(o)        Courts.  In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco City & County, California, for such purpose.

  1. General Provisions.

25.1    Electronic Communications.  The communications between you and wãvescool use electronic means, whether you visit the wãvescool Properties or send wãvescool e-mails, or whether wãvescool posts notices on the wãvescool Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from wãvescool in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that wãvescool provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

25.2    Release.  You hereby release wãvescool Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the wãvescool Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites or services of any kind arising in connection with or as a result of the Terms or your use of the wãvescool Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

25.3    Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without wãvescool’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

25.4    Force Majeure.  wãvescool shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

25.5    Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the wãvescool Properties, please contact us at support@wavescool.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

25.6    Limitations Period.  YOU AND WÃVESCOOL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE WÃVESCOOL PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

25.7    Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

25.8    Choice of Language.  It is the express wish of the parties that the Terms and all related documents have been drawn up in English.  C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.

25.9    Notice.  Where wãvescool requires that you provide an e-mail address, you are responsible for providing wãvescool with your most current e-mail address.  In the event that the last e-mail address you provided to wãvescool is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, wãvescool’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to wãvescool at the following address:

Wavescool, Inc.

2029 Verdugo Blvd, Suite 276, Montrose CA 91020

Such notice shall be deemed given when received by wãvescool by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

25.10 Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

25.11 Severability.  If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

25.12 Export Control.  You may not use, export, import, or transfer the wãvescool Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the wãvescool Properties, and any other applicable laws.  In particular, but without limitation, the wãvescool Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the wãvescool Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the wãvescool Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by wãvescool are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer wãvescool products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

25.13 Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

25.14 Entire Agreement.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

End of Terms

Terms of Use

 

WELCOME TO WÃVESCOOL! PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF WÃVESCOOL, INC., ITS AFFILIATES OR AGENTS (“wãvescool”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY WÃVESCOOL OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS FOR AN ACCOUNT (AS DEFINED BELOW), DOWNLOADING WÃVESCOOL’S MOBILE APPLICATION (“APPLICATION”), AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE AT LEAST THIRTEEN (13) YEARS OF AGE, AND IF YOU ARE BETWEEN 13 AND 18, YOU ARE USING THE SERVICE UNDER THE SUPERVISION OF A PARENT OR GUARDIAN WHO IS AGREEING TO BE BOUND BY THE TERMS OF USE, (3) IF YOU ARE A PARENT OR GUARDIAN OF A USER WHO IS BETWEEN 13 AND 18, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS TERMS OF USE AND SHALL BE RESPONSIBLE FOR THE MINOR USER’S ACTS OR OMISSIONS WITH RESPECT TO THE SERVICE; and (4) YOU ARE NOT A PERSON BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE OR APPLICATION.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, THE APPLICATION, OR THE SERVICES.

 

WE CURRENTLY OFFER A SUBSCRIPTION TO ARTISTS. IF YOU SUBSCRIBE TO THE SERVICES ON A MONTHLY BASIS, THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL MONTH PERIODS AT WÃVESCOOL’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6 BELOW.

 

THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

THE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY WÃVESCOOL IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, wãvescool will make a new copy of the Terms of Use available at the Website and within the Application, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website and within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Terms will be effective immediately for new Users of the Website, the Application, and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Website and within the Application for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4.1 below).  wãvescool may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application, and/or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application, and/or the Services.  Otherwise, your continued use of the Website, the Application, and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. How Our Services Work.  wãvescool provides a platform that allows artists (“Artists”) who create and own certain musical works and/or sound recordings to upload such works (such uploaded work, referred to herein as “Artist Works”) and match with certain social media influencers (“Trendsetters”) who will agree to leverage their social networks in order to promote the Artist Works, in exchange for a royalty that is decided upon among the applicable Artist, Trendsetter, and wãvescool.  wãvescool uses a custom algorithm to match Artist Works with Trendsetters, based on, among other factors, the musical genre of Artist Works and the demographic of the Trendsetter’s social media followers, in an effort to maximize the visibility of the Artist Works to a meaningful audience. Depending on your subscription tier you select (as described on our Pricing Page), wãvescool may also engage in direct promotion of the Artist Works by distributing the Artist Works to third-party music streaming platforms and/or e-retailers (“Music Platforms”), in exchange for a royalty, as further described in the “Payments” section below.
  2. Use of the Services and wãvescool Properties.  The Website, the Application, the Services, and the information and content available on the Website, the Application, and the Services (as these terms are defined below) (collectively, the “wãvescool Properties”) are protected by copyright laws throughout the world.  Subject to the Terms, wãvescool grants you a limited license to reproduce portions of the wãvescool Properties for the sole purpose of using the Services for your personal and/or professional purposes. Unless otherwise specified by wãvescool in a separate license, your right to use any wãvescool Properties is subject to the Terms.

2.1        Application License.  Subject to your compliance with the Terms, wãvescool grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.  Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

2.2        Updates.  You understand that the wãvescool Properties are evolving.  You acknowledge and agree that wãvescool may update the wãvescool Properties with or without notifying you.  You may need to update third-party software from time to time in order to receive the Services or use the wãvescool Properties.

2.3        Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the wãvescool Properties or any portion of the wãvescool Properties, including the Website and Application, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other wãvescool Properties (including images, text, page layout or form) of wãvescool; (c) you shall not use any metatags or other “hidden text” using wãvescool’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the wãvescool Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website or Application (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website or Application for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the wãvescool Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the wãvescool Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the wãvescool Properties. Any future release, update or other addition to the wãvescool Properties shall be subject to the Terms.  wãvescool, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of the wãvescool Properties terminates the licenses granted by wãvescool pursuant to the Terms.

2.4        Third-Party Materials.   As a part of the wãvescool Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for wãvescool to monitor such materials and that you access these materials at your own risk.

  1. Registration.

3.1        Registering Your Account.  In order to access certain features of the wãvescool Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is a User who has registered a user account on the Website or Application (each an “Account”).

3.2        Access Through a Third-Party Account.  You may be asked to link your Account with one (1) or more valid account on social networking services (each such account, a “Third-Party Account”), by allowing wãvescool to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to grant wãvescool access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating wãvescool to pay any fees or making wãvescool subject to any usage limitations imposed by such third-party service providers.  By granting wãvescool access to any Third-Party Accounts, you understand that wãvescool may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the wãvescool Properties (“Content”) that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through the wãvescool Properties via your Account.  Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content (as defined in Section 8.1) for all purposes of the Terms.  Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the wãvescool Properties. Please note that if a Third-Party Account or associated service becomes unavailable or wãvescool’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through the wãvescool Properties.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website or within the Application.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WÃVESCOOL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  wãvescool makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and wãvescool is not responsible for any Third-Party Account Content.

3.3        Registration Data.  In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You are responsible for all activities that occur under your Account (and if you are a parent or guardian supervising a minor user, you are responsible for all activities that occur under such minor user’s Account).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree not to create an Account or use the wãvescool Properties if you have been previously banned from the wãvescool Properties.

3.4        Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the wãvescool Properties.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the wãvescool Properties.

  1. Trendsetter-Specific Terms.  When agreeing to promote Artist Works, the following terms apply:

4.1        Once you have initiated a deal to promote a specified Artist and certain of Artist’s specified Artist Works, and the Artist has accepted the terms of such promotion (“Deal”), you agree to use commercially reasonable efforts to promote the Artist Works as agreed to by wãvescool, the applicable Artist, and Trendsetter, during the agreed upon time period.  You grant to the applicable Artist the right and license to use the photos, videos, and other social media content and materials and information you create in connection with promoting the Artist and/or Artist Works (“Promotional Content”), in whole or in part, in connection with Artist’s advertisement and promotion of itself and the Artist Works, as well as in connection with exercising Artist’s rights hereunder. If you fail to meet the minimum promotion requirements or any other terms of a Deal, then that Deal may be terminated at wãvescool’s option.

4.2        You agree that you will be paid royalties on the exploitation of the Artist Works through the Website, the Application, and Services, in an amount equal to the agreed upon royalty scale presented on the Deal page, based on your performance and reach for such Artist Works.

4.3        You will obtain, at your expense, all third-party rights, licenses, clearances, authorizations, permissions and releases, necessary for any Promotional Content to be publicly displayed, except with respect to the Artist Marks and the Artist Works.

4.4        You covenant that any and all Promotional Content, including but not limited to digital and/or social media postings, communications or statements effected by or on behalf of Trendsetter hereunder will be effected in a manner that complies with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising – LINK HERE), as well as the rules, regulations and policies of each applicable digital and/or social media platform, including with respect to disclosures necessary to clearly and conspicuously indicate to consumers that you have received consideration in exchange therefor.

4.5        Trendsetter will comply with all rules, regulations and requirements of any union or guild having jurisdiction over Trendsetter, including by making any payments (including health and pension payments) required by any union or guild in respect of such individuals.

  1.  Artist-Specific Terms.  When accepting a Trendsetter’s Deal, the following terms apply:

5.1        The license you grant to wãvescool in Section 9.5 with respect to the Artist Works (including both the applicable sound recording and composition embodied therein) that is subject to the Deal is exclusive (including as to you), and you authorize wãvescool to collect any and all Gross Revenues (defined in Section 6.2).  Without limiting the foregoing, you will take all actions necessary to accomplish the intent of the foregoing, including notifying all performing rights organizations and collecting societies of the rights granted to wãvescool and issuing letters of direction, as applicable, with respect to payments.  For clarity, Artist will ensure that wãvescool collects the writer and publisher share of any performing rights royalties.

5.2        You grant to the Trendsetter and to wãvescool the right and license to use the trademarks, service marks, publicity rights, privacy rights, names, images, likenesses, biographical details, indicia of identity, and logos in connection with Trendsetter’s and wãvescool’s advertisement and promotion of Artist and the Artist Works, and with respect to wãvescool, in connection with wãvescool’s products and services.

5.3        You agree that you will owe royalties to Trendsetter with respect to the promoted Artist Works, in an amount equal to the agreed upon royalty scale presented on the Deal page, based on the performance and reach of the Trendsetter, and that wãvescool may pay those royalties on your behalf.

5.4        You will be solely responsible for the acquisition of any and all third party clearances, permissions and licenses which are necessary for the licenses granted in the Terms, including with respect to the use of any copyrighted or trademarked materials (e.g., Artist Works), and for the payment of any and all applicable guild fees and for any and all residuals, payments, fees or royalties, if any, payable under any collective bargaining agreement or otherwise.

5.5        You represent and warrant that (a) each Artist Work is an original work and that neither the Artist Work, or any part thereof, including the original composition, infringes upon the title, literary, or musical property or copyright of any other work nor the statutory, common law or other rights (including rights or privacy and publicity) of any third party or violates any applicable criminal statute, (b) you are either the sole writer and composer and the sole owner of each Artist Work and of all the rights therein or you have the right and authority to grant the rights to the Artist Work on a full-work (100%) basis and no other licenses, permissions or authorizations are required to be obtained by wãvescool from any third party for the exercise of its rights to the Artist Works, (c) and that you have not sold, assigned, transferred, hypothecated or mortgaged any right, title, or interest in or to the Artist Work or any part thereof or any of the rights herein conveyed; and (c) that you have not entered into any agreement with any third party affecting the Artist Works or any right, title, or interest therein or in the copyright thereof and no third party has or had any claims or has claimed any right, title, or interest in or to the Artist Works or any part thereof, any use thereof, or any copyright therein.   You will indemnify and hold wãvescool, Trendsetter, and its and their affiliates’, respective officers, employees, and agents harmless from and against any and all suits, actions, losses, costs (including attorneys’ fees), liabilities, damages, and expenses arising from or relating to any claim or demand arising out of or related to any breach of any representation or warranty in this Section 5.5.

5.6        If a Deal is terminated, then Artist may select to continue to allow wãvescool to administer the Artist Work on an exclusive basis, subject to an administration fee retained by wãvescool.  In such a case, Artist may terminate the exclusive grant upon 45 days’ notice to wãvescool.

  1. Payments.

6.1        Payments by Artist.

(a)         As an Artist, you agree to pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide wãvescool with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) in order to subscribe to our Services on a monthly basis.  Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing wãvescool with your credit card number or PayPal account and associated payment information, you agree that wãvescool is authorized to immediately invoice your account for all fees and charges due and payable to wãvescool hereunder and that no additional notice or consent is required.  You agree to immediately notify wãvescool of any change in your billing address or the credit card or PayPal account used for payment hereunder.  wãvescool reserves the right at any time to change its prices and billing methods, either immediately upon posting on wãvescool Properties or by e-mail delivery to you.

(b)        Service Subscription Fees You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create select your subscription tier package (each, a “Service Commencement Date”).  Except as set forth in the Terms, all fees for the Services are non-refundable.  No contract will exist between you and wãvescool for the Services until wãvescool accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

(c)         Automatic Renewal.  Your subscription will continue indefinitely until terminated in accordance with the Terms.  After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at wãvescool’s then-current price for such subscription.  You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from wãvescool that your subscription will be automatically renewed, you will have thirty days from the date of wãvescool notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.  If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, you can manage your subscription at  manage.wavescool.com.  If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, you authorize wãvescool to charge your Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if wãvescool does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that wãvescool may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment,  your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

6.2        Payments to Artist and TrendsetterArtist acknowledges and agrees that wãvescool is entitled to collect the Gross Revenues, and that prior to paying Artist and Trendsetter the royalty specified in the applicable Deal, wãvescool will deduct any credit card processing fees associated with the payment by wãvescool to Artist or Trendsetter of such Gross Revenues, and wãvescool shall retain a percentage of the Gross Revenues. The royalty (in each instance of Artist and Trendsetter) will be a percentage of the Gross Revenue earned by the applicable Artist Work.  If, for any reason, wãvescool is unable to collect any or all Gross Revenues, then Artist will pay to wãvescool all Gross Revenues, less Artist’s agreed-upon share in a mutually agreeable manner. “Gross Revenues” means all revenue received by wãvescool from downloads and/or streams of the applicable Artist Works on the Music Platforms, as well as any subscription services (if any), advertising revenue, and all other revenue sources, during the term specified in the Deal.  Where wãvescool is required to make a payment to Artist or Trendsetter hereunder, wãvescool will not be required to make any such payment to Artist or Trendsetter via PayPal until Artist’s or Trendsetter’s aggregate payments exceed five U.S. dollars (USD 5.00) or via wire transfer until Artist’s or Trendsetter’s aggregate payments exceeds one hundred U.S. dollars (USD 100.00).

6.3        Independent Contractor Status / Taxes.  Nothing herein creates a partnership, joint venture, employer/employee or other relationship between the parties other than that of independently contracting parties. You shall be solely responsible for any and all taxes payable in connection with monies paid to you by wãvescool hereunder. All payments made in connection with these Terms are exclusive of taxes imposed by governmental entities of whatever kind and imposed with respect to the transactions for services provided under these Terms.

6.4        Free Trials and Other Promotions.  Any free trial or other promotion that provides access to special features and functions of the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact wãvescool to have the charges reversed.

6.5        Advertising Revenue.  wãvescool reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that wãvescool has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by wãvescool as a result of such advertising.

6.6        Disputes.  You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: billing@wavescool.com.

6.7        Third Party Provider.  wãvescool uses Stripe, Inc. as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services).  By buying or selling on the wãvescool Properties, you agree to be bound by Stripe’s Privacy Policyhttps://stripe.com/privacy and hereby consent and authorize wãvescool and Stripe to share any information and payment instructions you provide with third-party service providers to the minimum extent required to complete your transactions.

  1. Release.  wãvescool expressly disclaims any liability that may arise between Users of its Services, including with respect to any Deal made between the Trendsetter and Artist via the Services.  The Services are a venue for connecting Users and for connecting Artists and Trendsetters. wãvescool does not itself make any guarantees with respect to the Services made available through the Website or the Application, including the visibility or reach of Artist Works, the compatibility of an Artist with a matched Trendsetter, Trendsetter’s performance of any promotional services on behalf of Artist, or that Trendsetter will earn any amount, or any minimum amount, of royalties from its promotion of Artist Works.  In the event that you have a dispute with one or more Users or with a third party in relation to a Deal, you release wãvescool (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
  2. Responsibility for Content.

8.1        Types of Content.  You acknowledge that all Content, including the wãvescool Properties, is the sole responsibility of the party from whom such Content originated.  This means that you, and not wãvescool, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise share or make available (“Make Available”) through the wãvescool Properties, including Artist Works (with respect to Artists) or Promotional Content (with respect to Trendsetters) (“Your Content”), and that you and other Users of the wãvescool Properties, and not wãvescool, are similarly responsible for all Content they Make Available through the wãvescool Properties (“User Content”).

8.2        No Obligation to Pre-Screen Content You acknowledge that wãvescool has no obligation to pre-screen Content (including, but not limited to, User Content or Deals), although wãvescool reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Terms, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation messages that you send using the Services.  In the event that wãvescool pre-screens, refuses or removes any Content, you acknowledge that wãvescool will do so for wãvescool’s benefit, not yours.  Without limiting the foregoing, wãvescool shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

8.3        Storage Unless expressly agreed to by wãvescool in writing elsewhere, wãvescool has no obligation to store any of Your Content that you Make Available on the wãvescool Properties.  wãvescool has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the wãvescool Properties.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for applying the appropriate level of access to Your Content.  If you do not choose, the system may default to its most permissive setting.  You agree that wãvescool retains the right to create reasonable limits on wãvescool’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by wãvescool in its sole discretion.

  1. Ownership.

9.1        wãvescool Properties.  Except with respect to Your Content and User Content, you agree that wãvescool and its suppliers own all rights, title and interest in the wãvescool Properties (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Application, the Services, or the wãvescool Properties.

9.2        Trademarks. “wãvescool” and other related graphics, logos, service marks and trade names used on or in connection with the wãvescool Properties are the trademarks of wãvescool and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in the wãvescool Properties are the property of their respective owners.

9.3        Other Content.  Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the wãvescool Properties.

9.4        Your Content.  wãvescool does not claim ownership of Your Content.  However, when you as a User post or publish Your Content on or in the wãvescool Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

9.5        License to Your Content.  Subject to any applicable account settings that you select, you grant wãvescool a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part), in any medium or manner, now known or hereafter devised, for the purposes of operating and providing the wãvescool Properties to you and to our other Users (including the right to grant Trendsetters a license to Artist Works, subject to a Deal).  Without limiting the generality of the foregoing, Artist grants to wãvescool the right to make the Artist Works available for streaming and/or download on the Music Platforms, reproduce the Artist Works on computer servers or other storage media owned or controlled by or on behalf of wãvescool, and transmit, communicate to the public, and publicly perform the Artist Works, including on a through-to-the-audience basis, on a streaming or downloadable basis. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the wãvescool Properties.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not wãvescool, are responsible for all of Your Content that you Make Available on or in the wãvescool Properties.

9.6        Your Account.  Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of wãvescool.

9.7        Your Profile Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter.  You may not post or submit for print services a photograph of another person without that person’s permission.

9.8        Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to wãvescool through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that wãvescool has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to wãvescool a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the wãvescool Properties.

9.9        Reviews.  The Services host User Content that is related to reviews of certain Users.  Such reviews are opinions and are not the opinion of wãvescool, have not been verified by wãvescool, and each User should undertake his or her own research to be satisfied concerning any specific User.  You agree that wãvescool is not liable for such User Content.  wãvescool shall have the right, but not the obligation to monitor or review any reviews at any time. wãvescool reserves the right to refuse to post or remove any material submitted or posted in any review. Notwithstanding the foregoing, you acknowledge that wãvescool is under no obligation to edit or modify any information available in any reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a review. wãvescool does not assume liability for reviews or for any claims for economic loss resulting from such ratings and reviews.

  1. User Conduct.  While using or accessing the wãvescool Properties you agree that you will not, under any circumstances:

(a)         Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;

(b)        Interfere with or damage wãvescool Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

(c)         Fail to honor any Deal offered to or agreed to by you, unless the Artist or Trendsetter, as applicable, fails to comply with the Deal terms;

(d)        Post false, inaccurate, misleading, defamatory or libelous content;

(e)         Take any action that may undermine our feedback or ratings systems;

(f)          Bypass our robot exclusion headers, interfere with the working of the wãvescool Properties, or impose an unreasonable or disproportionately large load on our infrastructure;

(g)        Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(h)        Use the wãvescool Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or

(i)          Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; or (vi) infringes a third party’s intellectual property or privacy or other proprietary right.

  1. Confidentiality.

11.1    Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services and wãvescool Properties will be considered Confidential Information of wãvescool.

11.2    Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Terms of Use. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of these Terms, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under these Terms, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

11.3    Exceptions. The confidentiality obligations set forth in Section 11.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under these Terms or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

  1. No Solicitation.  The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through the wãvescool Properties.  You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of wãvescool.
  2. Investigations.  wãvescool may, but is not obligated to, monitor or review the wãvescool Properties and Content at any time.  Without limiting the foregoing, wãvescool shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law.  Although wãvescool does not generally monitor user activity occurring in connection with the wãvescool Properties or Content, if wãvescool becomes aware of any possible violations by you of any provision of the Terms, wãvescool reserves the right to investigate such violations, and wãvescool may, at its sole discretion, immediately terminate your license to use the wãvescool Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
  3. Interactions with Other Users.

14.1    User Responsibility.  You are solely responsible for your interactions with other Users of the wãvescool Properties and any other parties with whom you interact through the wãvescool Properties; provided, however, that wãvescool reserves the right, but has no obligation, to intercede in such disputes.

14.2    Content Provided by Other Users.  The wãvescool Properties may contain User Content provided by other Users.  wãvescool is not responsible for and does not control User Content.  wãvescool has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content.  You use all User Content and interact with other Users at your own risk.

  1. Third-Party Services.

15.1    Third-Party Services & Ads. The wãvescool Properties may contain links and/or integrate with third-party websites and/or services (“Third-Party Services”) and advertisements for third parties (“Third-Party Ads”) (collectively, “Third-Party Services & Ads”).  For example, we may use a Third-Party Service to help us distribute your Artist Works to Music Platforms. When you click on a link to or otherwise access a Third-Party Service or a Third-Party Ad, we will not warn you that you have left the wãvescool Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Services are not under the control of wãvescool.  wãvescool is not responsible for any Third-Party Services & Ads.  wãvescool provides these Third-Party Services & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services & Ads, or their products or services.  You use Third-Party Services & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.

15.2    App Stores.  You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”).  You acknowledge that the Terms are entered into between you and wãvescool and not with the App Store.  wãvescool, not the App Store, is solely responsible for wãvescool Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with wãvescool Properties, including the Application.  You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any wãvescool Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce it.

15.3    Additional Terms for Apple Applications.  The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

(a)         You acknowledge and agree that (i) the Terms are concluded between you and wãvescool only, and not Apple, and (ii) wãvescool, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b)        You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c)         In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between wãvescool and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of wãvescool.

(d)        You and wãvescool acknowledge that, as between wãvescool and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e)         You and wãvescool acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between wãvescool and Apple, wãvescool, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

(f)          You and wãvescool acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(g)        Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

15.4    Additional Terms for Google Applications. The following applies to any Google Play Sourced Application accessed through or downloaded from Google Play:

(a)         You acknowledge and agree that (i) the Terms are concluded between you and wãvescool only, and not Google, Inc. (“Google”), and (ii) wãvescool, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the Google Play Sourced Application must comply with the Google Play Terms of Service.

(b)        Google is only a provider of Google Play where you obtained the Google Play Sourced Application.

(c)         wãvescool, and not Google, is solely responsible for its Google Play Sourced Application;

(d)        Google has no obligation or liability to you with respect to wãvescool’s Google Play Sourced Application or these Terms; and

(e)         You acknowledge and agree that Google is a third-party beneficiary to the Terms as it relates to wãvescool’s Google Play Sourced Application.

  1. Indemnification. You agree to indemnify and hold wãvescool, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “wãvescool Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the wãvescool Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations.  wãvescool reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with wãvescool in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the wãvescool Properties.
  2. Disclaimer of Warranties.

17.1    As Is.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WÃVESCOOL PROPERTIES IS AT YOUR SOLE RISK, AND THE WÃVESCOOL PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  WÃVESCOOL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

(a)         WÃVESCOOL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WÃVESCOOL PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WÃVESCOOL PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WÃVESCOOL PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WÃVESCOOL PROPERTIES WILL BE CORRECTED.

(b)        ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WÃVESCOOL PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WÃVESCOOL PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c)         THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  WÃVESCOOL MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

(d)        NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WÃVESCOOL OR THROUGH THE WÃVESCOOL PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(e)         FROM TIME TO TIME, WÃVESCOOL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT WÃVESCOOL’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

17.2    No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT WÃVESCOOL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WÃVESCOOL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

17.3    No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES. YOU UNDERSTAND THAT WÃVESCOOL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WÃVESCOOL PROPERTIES. WÃVESCOOL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE WÃVESCOOL PROPERTIES.  YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES.

(a)         WÃVESCOOL MAKES NO WARRANTY THAT ANY ARTIST OR TRENDSETTER, OR ANY RELATED DEALS, WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  WÃVESCOOL MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE WÃVESCOOL PROPERTIES.

(b)        WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES AMONG USERS THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF DEALS, THE TRUTH OR ACCURACY OF USERS’ CONTENT, THE ABILITY OF TRENDSETTERS TO INITIATE DEALS, THE ABILITY OF ARTISTS TO ACCEPT DEALS, OR THAT A TRENDSETTER WILL ACTUALLY HONOR A DEAL.

  1. Limitation of Liability.

18.1    Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WÃVESCOOL PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WÃVESCOOL PROPERTIESOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WÃVESCOOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WÃVESCOOL PROPERTIES OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WÃVESCOOL PROPERTIES; (2) ANY DEALS OFFERED THROUGH THE SERVICES; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WÃVESCOOL PROPERTIES; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (5) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON WÃVESCOOL PROPERTIES; OR (6) ANY OTHER MATTER RELATED TO THE WÃVESCOOL PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

18.2    Cap on Liability.  UNDER NO CIRCUMSTANCES WILL WÃVESCOOL PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WÃVESCOOL AS A RESULT OF YOUR USE OF THE WÃVESCOOL PROPERTIES IN THE SIX MONTHS PRECEEDING THE DATE ON WHICH YOU FIRST ASSERT YOUR CLAIM.  IF YOU HAVE NOT PAID WÃVESCOOL ANY AMOUNTS IN THE SIX MONTHS PRECEEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, WÃVESCOOL’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).

18.3    Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS  MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

18.4    User Content.  WÃVESCOOL PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

18.5    Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WÃVESCOOL AND YOU.

  1. Procedure for Making Claims of Copyright Infringement.  It is wãvescool’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to wãvescool by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the wãvescool Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the wãvescool Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for wãvescool’s Copyright Agent for notice of claims of copyright infringement is as follows:

Wãvescool

Attention: Philip A. Nicolosi Law, P.C.
6735 Vistagreen Way, Suite 210
Rockford, IL 61107
Email: dmca@philnicolosilaw.com

  1. Term.

20.1    Term.  The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the wãvescool Properties, unless terminated earlier in accordance with the Terms.

20.2    Prior Use Notwithstanding the foregoing, if you used the wãvescool Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the wãvescool Properties (whichever is earlier) and will remain in full force and effect while you use the wãvescool Properties, unless earlier terminated in accordance with the Terms.

  1. Termination or Suspension of Services by wãvescool. wãvescool may terminate or suspend your right to use the wãvescool Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.  We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services.  Without limitation, wãvescool may terminate or suspend your right to use the wãvescool Properties if you breach any provision of the Terms or any policy of wãvescool posted through the wãvescool Properties from time to time; if wãvescool otherwise finds that you have engaged in inappropriate and/or offensive behavior; if wãvescool believes you are creating problems or possible legal liabilities; if wãvescool believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if wãvescool believes you are infringing the rights of third parties; if wãvescool believes you are acting inconsistently with the spirit of these Terms; or if despite our reasonable endeavors, wãvescool is unable to verify or authenticate any information you provide.  In addition to terminating or suspending your Account, wãvescool reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.  Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.

21.1    Termination of Services by You.  If you want to terminate the Services provided by wãvescool, you may do so by closing your Account for all of the Services that you use.

21.2    Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately.  You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Please note that we may be required to keep such information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements).  When we delete any information, it will be deleted from the active database, but may remain in our archives.  We may also retain your information for fraud or similar purposes. wãvescool will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

  1. Remedies.

22.1    Violations.  If wãvescool becomes aware of any possible violations by you of the Terms, wãvescool reserves the right to investigate such violations.  If, as a result of the investigation, wãvescool believes that criminal activity has occurred, wãvescool reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  wãvescool is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the wãvescool Properties, including Your Content, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; (5) protect the rights, property or personal safety of wãvescool, its Users or the public; or (6) in connection with all enforcement actions or investigations or other government officials, as wãvescool in its sole discretion believes to be necessary or appropriate.

22.2    Breach.  In the event that wãvescool determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the wãvescool Properties, wãvescool reserves the right to:

(a)         Warn you via e-mail (to any e-mail address you have provided to wãvescool) that you have violated the Terms;

(b)        Delete any of Your Content provided by you or your agent(s) to the wãvescool Properties;

(c)         Discontinue your registration(s) with any of the wãvescool Properties, including the Services or any wãvescool community;

(d)        Notify and/or send Content to, and/or fully cooperate with, the proper law enforcement authorities for further action; and/or

(e)         Pursue any other action which wãvescool deems to be appropriate.

22.3    No Subsequent Registration.  If your registration(s) with or ability to access the wãvescool Properties, or any other wãvescool community is discontinued by wãvescool due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the wãvescool Properties or any wãvescool community through use of a different member name or otherwise.  In the event that you violate the immediately preceding sentence, wãvescool reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

  1. International Users.  This Website and the Application can be accessed from countries around the world and may contain references to wãvescool Properties and Content that are not available in your country.  These references do not imply that wãvescool intends to announce such wãvescool Properties or Content in your country.  The wãvescool Properties are controlled and offered by wãvescool from its facilities in the United States of America.  wãvescool makes no representations that the wãvescool Properties are appropriate or available for use in other locations.  Those who access or use the wãvescool Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  2. Arbitration Agreement.

Please read this Arbitration Agreement carefully.  It is part of your contract with wãvescool and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a)         Applicability of Arbitration Agreement.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by wãvescool that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  Unless otherwise agreed, all arbitration proceedings will be held in English.  This Arbitration Agreement applies to you and wãvescool, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

(b)        Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to wãvescool should be sent to:

Wavescool, Inc.

          2029 Verdugo Blvd, Suite 276, Montrose CA 91020

After the Notice is received, you and wãvescool may attempt to resolve the claim or dispute informally.  If you and wãvescool do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c)         Arbitration Rules.  Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.  The JAMS Comprehensive Arbitration Rules and Procedures governing the arbitration are available online at http://www.jamsadr.com/ or by calling JAMS at 1-800-352-5267.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  If the arbitrator grants you an award that is greater than the last settlement offer that wãvescool made to you prior to the initiation of arbitration, wãvescool will pay you the greater of the award or $2500.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

(d)        Additional Rules for Non-Appearance Based Arbitration.  If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

(e)         Time Limits.  If you or wãvescool pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.

(f)          Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and wãvescool, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and wãvescool.

(g)        Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and wãvescool in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WÃVESCOOL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(h)        Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE ARTIST, TRENDSETTER, OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER ARTIST, TRENDSETTER, OR USER.

(i)          Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the statement of decision and award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(j)          Severability.  If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

(k)         Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

(l)          Survival of Agreement.  This Arbitration Agreement will survive the termination of your relationship with wãvescool.

(m)       Small Claims Court.  Notwithstanding the foregoing, either you or wãvescool may bring an individual action in small claims court.

(n)        Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(o)        Courts.  In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco City & County, California, for such purpose.

  1. General Provisions.

25.1    Electronic Communications.  The communications between you and wãvescool use electronic means, whether you visit the wãvescool Properties or send wãvescool e-mails, or whether wãvescool posts notices on the wãvescool Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from wãvescool in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that wãvescool provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

25.2    Release.  You hereby release wãvescool Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the wãvescool Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites or services of any kind arising in connection with or as a result of the Terms or your use of the wãvescool Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

25.3    Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without wãvescool’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

25.4    Force Majeure.  wãvescool shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

25.5    Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the wãvescool Properties, please contact us at support@wavescool.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

25.6    Limitations Period.  YOU AND WÃVESCOOL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE WÃVESCOOL PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

25.7    Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

25.8    Choice of Language.  It is the express wish of the parties that the Terms and all related documents have been drawn up in English.  C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.

25.9    Notice.  Where wãvescool requires that you provide an e-mail address, you are responsible for providing wãvescool with your most current e-mail address.  In the event that the last e-mail address you provided to wãvescool is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, wãvescool’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to wãvescool at the following address:

Wavescool, Inc.

2029 Verdugo Blvd, Suite 276, Montrose CA 91020

Such notice shall be deemed given when received by wãvescool by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

25.10 Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

25.11 Severability.  If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

25.12 Export Control.  You may not use, export, import, or transfer the wãvescool Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the wãvescool Properties, and any other applicable laws.  In particular, but without limitation, the wãvescool Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the wãvescool Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the wãvescool Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by wãvescool are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer wãvescool products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

25.13 Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

25.14 Entire Agreement.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

End of Terms

Terms of Use updated as of April 20, 2020