TERMS & CONDITIONS FOR WAVLENGTH
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
The Platform is available only for individuals aged 18 years or older. If you are under 18, you are not permitted to use the Platform.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice and without reason.
The Platform provides you and others the ability to connect with other Users for the purpose of providing, or being provided, various types of music-related services and products on a project basis (each, a “Project”), such as graphic design, photography, videography, animation, producing, editing, mixing & recording. Such services are provided by Users to other Users in exchange for consideration to be determined and negotiated by the applicable Users. Users may utilize the Platform to find other Users, negotiate transactions for Projects, and enter into agreements resulting from such negotiations (“Freelancing Transactions”). The use of any content or services that are provided by one User (in such capacity, “Freelancer”) to another User (in such capacity, “Recipient”) in order to fulfill such Freelancer’s obligations under a Freelancing Transaction (each a “Freelancer Submission”) shall be governed by the agreement between Freelancer and Recipient pursuant to the Freelancing Transaction.
AFTER A PROJECT HAS BEEN CREATED/OPENED ON THE PLATFORM, YOU ARE STRICTLY PROHIBITED FROM NEGOTIATING AND EXECUTING A FREELANCING TRANSACTION RELATED TO THAT PROJECT OUTSIDE OF THE PLATFORM. IN ADDITION, WHILE YOU ARE A REGISTERED USER OF THE PLATFORM, YOU MAY NOT ENTER INTO ANY AGREEMENT WITH ANY OTHER USERS WHOM YOU MET THROUGH THE PLATFORM UNLESS YOU DO SO THROUGH THE PLATFORM. YOUR RIGHTS TO CONTINUE USING THE PLATFORM WILL IMMEDIATELY TERMINATE UPON YOUR VIOLATION OF THIS PARAGRAPH. ADDITIONALLY, IN CONNECTION WITH ANY VIOLATION OF THIS PARAGRAPH, THE APPLICABLE RECIPIENT SHALL PROMPTLY PAY US THE GREATER OF (I) THE FEES WE OTHERWISE WOULD HAVE BEEN ENTITLED TO UNDER THIS SECTION 1 HAD RECIPIENT AND FREELANCER NOT BREACHED THIS PARAGRAPH; OR (II) ONE THOUSAND U.S. DOLLARS (US$1,000). YOU AGREE THAT THE AMOUNTS IDENTIFIED HEREIN ARE A REASONABLE ESTIMATE OF ANTICIPATED LOSS TO US AND ARE FIXED AS LIQUIDATED DAMAGES, AND NOT AS A PENALTY, BECAUSE OF THE DIFFICULTY OF ASCERTAINING THE EXACT AMOUNT OF DAMAGES THAT WOULD BE SUSTAINED BY US IN THE EVENT YOU BREACH THIS PARAGRAPH.
Wavlength’s fees for Freelancing Transactions are provided to Freelancers when Freelancers prepare (and propose) Project proposals for Recipients. Such fees shall be deducted from the amounts received by Wavlength from Recipients upon completion of the Freelancing Transaction, with the remaining amount remitted to the Freelancer.
The Platform also provides you and others the ability to license and/or purchase pre-recorded beat or instrumental tracks (“Tracks”). Such Tracks are made available for licensing/purchase subject to pre-determined licensing and/or purchase terms (the “Track Terms”) selected by the creator of the applicable Tracks (the “Producer” of the Track). You are free to view the applicable Track Terms prior to entering into any agreement to license or purchase a Track (each a “Track Transaction”). You and the Producer shall be bound to any Track Terms agreed to when making a Track Transaction. Wavlength shall not be party to the Track Terms with respect to any such Track Transaction.
Some Producers offer their Tracks solely through Wavlength. Wavlength may endeavor to promote such Tracks on the Platform by giving them higher visibility in search results over Tracks offered through multiple services.
Wavlength’s fees for Track Transactions are provided to Producers when Producers request to list their Tracks on the Platform. Such fees shall be deducted from the amounts received by Wavlength from Recipients upon completion of the Tack Transaction, with the remaining amount remitted to the Freelancer.
GENERAL TRANSACTION CONDITIONS
Freelancing Transactions and Track Transactions are referred to herein, collectively as “Transactions.” As a Recipient, you agree to pay the full transaction upfront where the Freelancer/Producer receives their earnings after Wavlength deducted their service fees and commission. Both Recipients/Freelancers understand that their transaction will undergo our “Payment Limbo” service where Wavlength holds the transaction fee in escrow to ensure trust on both sides as the project is in progress. If a Recipient fails to pay amounts owed following an agreement for a Transaction with a Freelancer/Producer whether by cancelling the Recipient’s credit card, initiating an improper chargeback, or any other means, Recipient’s Wavlength account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Recipient must reimburse Wavlength for amounts due upon demand, plus any applicable processing fees, charges, or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, Wavlength may setoff amounts due against other amounts received from or held for Recipient, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
As a Freelancer/Producer you acknowledge and agree that Wavlength will be entitled to recover any chargebacks that may be imposed on Wavlength by a credit card issuer on funds paid to you by Recipients through the Platform. A chargeback occurs when a Recipient rejects or reverses a charge on his or her credit card through the credit card issuer. You agree that Wavlength may reverse any such payments made to you, which are subject to chargeback via a credit card issuer. To cover the cost of processing chargebacks, Wavlength assesses a US$20.00 fee to Users for credit and debit card payment chargebacks. Wavlength reserves the right to revoke and deny any and all rights to use the Platform of a User that Wavlength believes to be abusing the chargeback process.
Wavlength, in its sole discretion, may place a hold on any or all of the payments you receive when Wavlength believes there may be a high level of risk associated with you, your Sign-In Name (as defined below), or any or all of your Transactions. If Wavlength places a hold on any or all of the payments you receive, you will be provided with notice of our actions and the way in which to resolve the issue. If you are involved in a dispute, in certain circumstances Wavlength may place a temporary hold on the funds in your account to cover the amount of any potential liability. If the dispute is resolved in your favor, Wavlength will lift the temporary hold.
The parties to the Transaction are responsible for determining whether any taxes, including any goods and services or value added taxes are due to any taxing authorities, and making any such timely payments with respect to any Transactions to such applicable taxing authorities.
SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
Although registration is not required to access and use the Platform (in the future), there are certain benefits that flow from being a registered User. If you do not wish to log in using these third-party access credentials, you will be prompted to create an account, which includes an email address (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist us in authenticating your identity when you log in in the future (“Unique Identifiers”). Wavlength may also collect Unique Identifiers in order for Wavlength to better communicate with you. When creating your account or profile, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. We will not be liable for any loss or damage caused by any unauthorized use of your account.
Wavlength’s community, like any community, functions best when its Users follow a few simple rules. By accessing the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
You will not upload, post, e-mail, transmit, or otherwise make available any Freelancer Submission or User Content (as defined below) that:
infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will comply with all applicable laws in your use of the Platform and will not use the Platform for any unlawful purpose;
You will not access or use the Platform to collect any market research for a competing business;
You will not attempt to use the Platform or any of the resources provided therein to set up a Transaction outside the Platform, and any transactions resulting from introductions facilitated on the Platform shall be executed as Transactions on the Platform;
You will not provide false or misleading information as part of your profile or otherwise on the Platform;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform;
You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Platform;
You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
You will behave in a professional and respectful manner when communicating with other Users.
You will not post your personal contact information on the Platform (other than where specifically requested by Wavlength). Such personal contact information includes, without limitation, your email address, phone number, social-media profile links, other web-addresses or identifiers.
The Platform contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Wavlength (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
You may view all Content for your own personal, non-commercial use. No other use is permitted without the prior written consent of Wavlength. Except with regard to Transactions executed using the Platform, Wavlength and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access the Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Wavlength (the “Wavlength Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Wavlength. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Wavlength Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Wavlength Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
USER CONTENT; LICENSES
The Platform may also allow you to post content on the Platform (collectively, “User Content”). Such User Content is different from, and does not include, (i) creative materials provided by the Recipient to the Freelancer in furtherance of a Project (collectively, “Client Content”), or (ii) the Freelancer Submissions that Freelancers create/perform in connection with a Transaction. You expressly acknowledge and agree that once you submit your User Content for inclusion into the Platform or our social media pages, it may be accessible by others, and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available.
YOU, AND NOT Wavlength, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT AND CLIENT CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM OR OUR SOCIAL MEDIA PAGES.
You retain all copyrights and other intellectual property rights in and to your own User Content and Client Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) such User Content, and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your User Content, your name, likeness, and photograph in connection with any use of the related User Content permitted by the previous sentence and/or to advertise and promote the Platform, Wavlength, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
Wavlength will not make any unauthorized use of Client Content or any materials generated for the purpose of fulfilling a Transaction, whether such materials are for a finalized Freelancer Submission, or works-in-progress leading up to a finalized Freelancer Submission.
Unless otherwise agreed to by the Freelancer, Recipient’s shall not utilize the name, likeness or other identifying information of the Freelancer (including, but not limited to, stating that a completed work that incorporates a Freelancer’s work “features” the particular Freelancer).
If you submit User Content to us, each such submission constitutes a representation and warranty to Wavlength that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that it and its use as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
NO WARRANTIES; LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
(a) The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
(b) We are not responsible for, and make no representations regarding: (i) the advertisements or any other third-party material posted on the Platform or any of our social media pages; or (ii) the products or services provided by advertisers. Any dealings or interactions you have with advertisers, advertisements, other third parties, or other third-party materials while using the Platform are between you and the advertiser or other third party, and you agree that Wavlength is not liable for any loss or claim that you may have against such parties.
REPRESENTATIONS; WARRANTIES; AND INDEMNIFICATION
(a) You hereby represent, warrant, and covenant that:
You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content, Freelancer Submissions, and any other works that you incorporate into your User Content and any Freelancer Submission, and all the rights necessary to grant the licenses and permissions you grant hereunder;
Use of your User Content and Freelancer Submissions in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party;
You shall not submit to the Platform or any of our social media pages any User Content or Freelancer Submission that violates our Community Guidelines set forth above or any other term of this Agreement; and
You shall abide by the terms and conditions of any Transaction you enter into, including any Track Terms.
(b) You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, we and such parties may incur arising or resulting from: (i) your breach of this Agreement; (ii) any Transaction you enter into; (iii) your misuse of the Content or the Platform; and/or (iv) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability. Sections 4-11 and 13-20 shall survive the termination of this Agreement.
You are not, and shall not present yourself as, an employee, contractor, or agent of Wavlength, or that you are in any way affiliated with Wavlength, in any capacity (whether on business cards, social-media, or on any other websites or media).
Although you are able to find information about Projects and Freelancers through our Platform, we are not a party to any Transaction a Freelancer/Producer makes with a Recipient. Accordingly, we shall have no liability to any party in connection with such Transactions. As discussed below, we do recommend, however, that in connection with each Freelancing Transaction, Freelancer and Recipient reduce their agreement to an executed (digitally or otherwise) written agreement (and recommend each party consult with their own attorney to do so), whether through the use of form agreements made available from time to time by Wavlength, or Freelancer and Recipient’s own draft documents. With respect to Track Transactions, although only the Wavlength forms are made available for such Transactions, we recommend you consult with an attorney before making or accepting any track licensing offers under any of the Track Terms.
We make no attempt to confirm, and do not confirm, any User’s purported identity. You are solely responsible for determining the identity and suitability of other Users whom you may contact and work with via the Platform.
We make no representations, offer no assurances, and do not investigate any of our Users’ backgrounds, morality, character, skills, or capabilities, and you hereby acknowledge that you assume the risk of any encounter or interaction with such persons. We encourage all Users to determine the suitability of Freelancers and Recipients for Projects by communicating directly with other Users through the tools available on the Platform and to reviewing their profile pages for feedback from other Users.
Although we reserve the right to do so, we typically do not verify information that Users submit to the Platform.
WE DO NOT ENDORSE ANY USERS OR ANY TRACKS.
WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, CLAIMS, AND ASSURANCES AS TO THE FREELANCER SUBMISSIONS AND TRACKS.
Wavlength may, from time to time, provide proposed form agreements for Freelancing Transactions that may be used by Freelancers and Recipients at their discretion and subject to any negotiations between the parties. Wavlength makes no representations regarding the usage of these forms and disclaims, to the maximum extent allowed by law, all liability arising from the usage of such forms. In making these forms available to you, as well as the Track Terms we are not providing legal advice, and you should consult with an attorney before entering into any Transaction, whether or not you choose to use the provided forms.
DIGITAL MILLENNIUM COPYRIGHT ACT
Wavlength respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
P.O. Box 38225
Sharon Hill, PA 19079
Attention: Copyright Agent
Or via email to: DMCA@Wavlength.com
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
This Agreement and any action related thereto will be governed by the laws of the State of Pennsylvania, USA without regard to its conflict of laws provisions.
In the event of a dispute arising under or relating to this Agreement, a Freelancer Submission, the Content, or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN A NEW YORK SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. If you reside outside the United States, the arbitration shall take place in New York, New York. The parties may litigate in a court in New York to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER INANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Pennsylvania for purposes of any such action by us.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will insure to the benefit of our successors, assigns, licensees, and sublicensees