These Songoven Terms of Use ("Terms") are a legally binding agreement between SONGOVEN LTD., its subsidiaries, and affiliates (collectively, "Songoven") and yourself (“you”).

By using this service or browsing this website, whether by creating a User Account or as a guest (including visitors who have not registered), you acknowledge that you have read, understood, accepted, and agreed to be bound by these terms. These Terms apply to every individual accessing the website or using the service in any manner, whether or not a User Account has been created. If you do not agree to these Terms, please refrain from using this service and/or visiting our website.

Songoven reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. Revisions to the Terms will be effective upon Songoven's posting of such revised Terms at www.Songoven.com/terms-of-use. It is your responsibility to check these Terms for changes periodically. Your continued use of the User Account after such posting of changes will constitute your consent to be bound by the revised Terms. If you do not agree to the Terms, your only remedy is to discontinue your use of the Site and to cancel any User Account you have created. Songoven may (but is not obligated to) notify you of any changes in these Terms.

Songoven reserves the right to terminate or suspend all or part of your User Account created, without prior notice and without liability.

The User Account is made available for personal and non-commercial use only. You are not allowed to resell, deep-link, use, copy, monitor (e.g., spider, scrape), display, download, reproduce, or use crawlers, robots, data mining or extraction tools of any type in connection with any content or information, software, products or Songs for any commercial or competitive activity or purpose.

It is your responsibility to ensure that your mobile device or computer meets all the necessary technical specifications to enable you to access and use the User Account. Songoven does not provide you with the equipment to access and/or use the User Account.

You may delete your account by sending a termination notice to [email protected] and upon receipt of said notice your account will be terminated within 30 days after the notice.

By accepting these Terms and/or by opening the User Account, you declare that you are of legal age to form a binding contract with Songoven, and in any case, at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18). The User Account is not available for use by persons under the age of legal majority.
 

1. DESCRIPTION OF SONGOVEN'S BUSINESS

Songoven is a platform for creating personalized and customized songs for yourself or your loved-ones. Songoven permits individuals like you to purchase customized musical creations, of different musical genres, by providing specific guidelines, personalization elements and specifications, and selecting the performing artist (the "Affiliated Artists"). Songoven produces the creation, and ensures that each song "baked" in our oven meets the required standards set forth by Songoven's team for excellence. For purposes of these Terms, each song ordered by you shall be referred to as the "Song".
 

2. USER ACCOUNT

In order to purchase products from Songoven (including Songs, or add-ons), you must provide an email address to register for and maintain an active personal User Account ("User Account").

Registration for a User Account will require that you submit an email address to Songoven. A change in your email may result in your inability to access or use the User Account. You may be required to provide additional personal information and/or provide proof of identity or other method of identity verification to access or use the User Account, and you agree that you may be denied access to or use of the User Account if you refuse to provide such information or proof of identity or other method of identity verification.

You agree that Songoven may contact you by email at the email address provided by you or on your behalf in connection with a User Account, including for technical support, advertisement, newsletters and announcements purposes.

The following rules govern the security of your User Account and the information stored in relation to your User Account. For purposes of these Terms, references to User Account may include any account and account information, including names, addresses, and any activity log related to the Services, such as any Songs ordered, completed and/or cancelled.

In the event you become aware of or reasonably suspect any breach of security, including, without limitation any loss, theft, or unauthorized use of the Services or unauthorized access to your User Account, you must immediately notify Songoven.

You are responsible for all activity on your User Account, whether or not such actions were taken by you, including actions taken by third parties, and shall accept full responsibility for any unauthorized use of the User Account.

You acknowledge that your User Account may be terminated if it is used to engage in any activity that violates these Terms or is otherwise improper or illegal, fraudulent, abusive, unethical, questionable, suspicious or which, in Songoven's exclusive discretion is undesired.

You are hereby made aware and expressly agree that ALL OF YOUR ACTIVITY ON THE USER ACCOUNT MAY BE LOGGED AND STORED, AND ALL INFORMATION DISCLOSED TO SONGOVEN. Songoven may disclose any information it has about you (including your identity) if it determines that such disclosure is necessary in connection with any inquiry, investigation, or complaint regarding the use of the Services, or to identify, contact or bring legal action against someone who may have made use of the Services and/or who may have caused damage, injury to or interference with (either intentionally or unintentionally) any right or property belonging to Songoven, the Affiliated Artist, or any third party. Songoven reserves the right at all times to disclose any information that Songoven deems necessary to comply with any applicable law, regulation, legal process or governmental request. Songoven also may disclose your information when Songoven determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

Songoven may preserve any communication between you and Songoven through the website, application or its User Account, and may disclose such data if required to do so by law or if Songoven determines that such disclosure is necessary to (1) comply with legal process, (2) enforce these Terms, (3) respond to any claims, or (4) protect the rights, property or personal safety of Songoven, its employees, Affiliated Artists, clients, holders of User Accounts, users of the Site/application, and the public.

You agree that Songoven may, in its sole discretion, without prior notice, terminate your access to the User Account, for any reason, including (but not limited to): (i) Songoven determines that you have violated these Terms; (ii) a request made by a third party and/or law enforcement or other government agencies; (iii) illegal or improper use of your User Account, or illegal or improper use of the Site/User Account; (iv) suspected violation of Songoven’s or others' intellectual property as determined by Songoven in its sole discretion or (v) due to technical issues or problems. You agree that Songoven will not be liable to you or to any third party for termination of your access to the Services for any reason. In the event that Songoven terminates access to or use of your User Account, you may not participate nor make use of the Site again without Songoven's express prior written consent, including use of any referral credits or unused gift cards. Songoven reserves the right to refuse to keep accounts for, and provide access to the Site or any future Services or any part thereof to, any individual.

Songoven’s collection and use of personal information in connection with the Services is described in Songoven’s Privacy Policy located at www.songoven.com/privacy-policy.

 

3. ORDER OF SONGS, REJECTION & REVISIONS

Orders: Songoven grants you the right to choose the artist of your Song from an array of Affiliated Artists, carefully selected by Songoven. Songoven retains the right to rate the Affiliated Artists in its sole discretion and retains the right to remove and/or add Affiliated Artists in its exclusive discretion.

The Songs created are based on specifications given to Songoven by you. You agree that you shall have limited artistic influence on the final Song produced by Songoven. Subject to your ability to request revisions (as detailed below) upon the song production completion and delivery, the Song shall be final and may not be altered or rejected by you.

It is hereby clarified that if no Affiliated Artist is available to perform the requested order, and you are not able to allow for additional time to process your order, Songoven may cancel your order and grant you a refund and/or credit.

Cancellations: You may not cancel your order once it is submitted. You understand that once the order has been submitted, Songoven has begun working on your request. Accordingly, no cancellations will be permitted, for any reason, after the order has been submitted. No refunds will be issued for cancellations made after the order has been submitted.  

Revisions: The rules permitting revisions of a Song after the order has been submitted are listed here. 

Rejections: You may not reject any Song created at your request and the payment becomes non-refundable once the order of the Song is submitted.

Denial of Requests for Songs: Songoven reserves the right to deny applications for Songs if, in Songoven's exclusive and unreviewable discretion, the application is offensive, contains profanity, sexually explicit content, degrading, racist, could induce violence, cause damage or otherwise in poor taste.

Adding Recorded Greetings: You may add a recorded greeting to any request for Songs. Subject to Songoven's right to deny the greeting (under similar terms as set forth in Section ‎4.5 above), the Greeting will be added to the Song in the final compilation provided to you.

Acceptance of Song: Song Delivery: When placing your order, you will need to select a delivery date ranging between 4-8 days. The delivery will be completed by the end of the chosen date, which is 23:59. You can log in to your account and track the production progress at any time. Once the production process is complete, we will send you an email notification that your song is ready. Furthermore, you will receive a link to your song page where you can listen, share and download. All of out products are delivered digitally.

Song Delivery: You have the option of recording a video of your initial review of the completed Song production. By clicking "I agree" on the designated button you agree that your initial reaction to the first review of the Song will be recorded by video and used by Songoven for all purposes, including advertisements, promotions and other purposes, subject, however, to our Privacy Policy.

 

4. GRANT OF LIMITED LICENSE

As long as you fully comply with these Terms, Songoven grants you a personal (non-commercial), limited, non-exclusive, non-transferable, non-sublicensable, limited scope license to use the Song, solely in connection with your lawful personal use and for no other purpose.

You hereby acknowledge that your license to use the Song is limited by these Terms, and, if you violate or if, at any point, you do not agree to any of these Terms, your license to use the Song shall immediately terminate without any liability to Songoven or any other third party, and you shall immediately refrain from using the Song. In such a case, Songoven may also terminate your User Account without any liability to Songoven or any other third party.

Songoven and the Affiliated Artists retains all rights in the Song(s) and its related materials (including, but not limited to, applications, designs, graphics, lyrics, texts, information, pictures, video, sound, melodies, instrumentals, music, and other files, and their selection and arrangement) (collectively, the "IP"). The entire contents of the Song are protected by applicable copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You may not directly or indirectly modify, decompile, disassemble, reverse engineer, copy, transfer, create derivative works from, rent, sub-license, distribute, reproduce framed, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the Song pursuant to these Terms, or otherwise exploit any of the IP without Songoven’s explicit, prior written consent. You hereby acknowledge that you do not acquire any ownership rights by using the Song or by accessing any of the IP, or rights to any derivative works thereof.

Neither these Terms nor your use of the Song convey or grant to you any rights: (i) in or related to the Song except for the limited license granted above; or (ii) to use, in violation of the limited license granted herein, Songoven's company names, logos, product and song names, trademarks or services marks or those of Songoven's Affiliated Artists.

 

5. FEES & PAYMENTS

Fees: the price of each Song, product or other service is specified on the relevant order page. The full price for a Song shall be charged and paid upon submission of the order, and shall include all transaction, processing fees, and/or sales tax, as applicable. All payments are made in US currency (U.S Dollar). Any payments made with foreign currency will be subject to transaction and conversion fee, as applied by the payment platform used. Songoven is not responsible or liable for any conversion rates, or processing fees associated with payment made in a non-US currency. Songoven retains the right to process payments in non-US currency in its sole and unreviewable discretion.

Payment Platforms: Songoven shall determine, exclusively, which payment platforms are acceptable, and payments may be made by any lawful and valid payment form approved by Songoven (including credit cards, PayPal accounts and similar payment platforms). The terms applicable to such payments are governed by the terms of the payment platform and not these Terms. Songoven is not responsible for any fees, or processing charges, applicable to the use of any credit card or other payment platform chosen by you to process the payment. All such costs shall be exclusively borne by you.

Cancellation Fees & Refunds: Generally speaking, no refunds are available and no cancellations are permitted after an order has been placed. However, Songoven retains the right to grant refunds, in its sole and unreviewable discretion, based on its internal policies in special cases. Nothing herein shall require Songoven to grant a refund, and nothing herein shall prevent Songoven from changing or terminating its internal policies dealing with special case refunds. If a discretionary refund is granted, it will be granted by means of credit to the payment form you used, or, at your election, as a credit balance to be used by Songoven for future orders. If any discretionary refunds are granted, a cancellation fee may nevertheless be charged in an amount to be determined by Songoven, but in no event less than 25% of the original order amount.

 

6. GIFT CARDS

Gift cards are a great way to give someone you care about the opportunity to purchase the products of Songoven, and bake a Song for a loved-one. Gift cards can be purchased exclusively on the Songoven platform and are only existing in electronic form. We do not offer "hard"/plastic gift cards.

Gift cards can be used only with respect to products, and services available on the Songoven platform. Gift cards are issued by Songoven only.  Songoven may, in its sole and exclusive discretion, refuse to honor a gift card if it has an invalid number, if the user failed to adhere to the requirements related to the gift card (such as creating a User Account, or activating the card), if the card has expired, if the card's balance has been used in full (zero balance), if the card has not been issued by Songoven's system or an authorized vendor, if the gift card with issued in connection with suspected violation of any applicable laws, or through fraudulent activity.

It is your responsibility to provide a correct email address for the gift card recipient. Songoven is not responsible for any loss incurred by reason of inaccurate delivery information, or our gift card being delivered into a spam folder, or blocked by a spam filter, or otherwise not delivered for similar reasons.

Gift cards become effective when (i) full payment for them has been received; and (ii) the recipient has activated the card. Users of gift cards may be required to create a User Account to exercise or activate the gift card, and they may be required to accept these Terms. Gift cards will remain effective for a period of 2 years from the date of purchase. In the event a valid card cannot be used for technical reasons, the only obligation of Songoven to the holder shall be to replace the defective gift card by another one, and in any event, no damages or compensation will be due to a holder of a defective gift card. Songoven shall have no liability for any loss, theft or other unauthorized use of a gift card. You and your gift card recipient have the exclusive obligation to ensure that the gift card information is properly secured.

Each gift card has a beginning balance, which reflects the amount of the gift card purchased for the gift card recipient. After the gift card has been activated, the card holder may use the gift card to purchase products and services on the Songoven platform, including Songs. Each item purchased by the holder can be paid for using the option of "gift card" as a payment option. If used, the cost of the product/service purchased will be charged against the balance of the activated gift card. If the total cost of products/services purchased by the holder is lower than the total available balance of the gift card, the unused balance shall remain available for the holder to use in the future until the gift card expires, or its balance is otherwise fully used, whichever is sooner. If the total cost of the products/services purchased by the holder is higher than the total available balance of the gift card, the holder will be required to pay the difference using other methods of payment, including additional gift cards, if available to the user. Notwithstanding the foregoing, it is hereby clarified that a gift card is not a credit card, a charge card, a debit card, or other form of extended credit.

Nothing herein shall be deemed a guaranty that Songoven shall continue to offer gift cards and Songoven retains the right to terminate the availability of the gift card program, for any or no reason, at any time and from time to time. If the gift card program is terminated, the termination shall not affect any gift cards already purchased by you, but the expiration date thereof may be reduced, by notice to the gift card holder.   
 

 

7. REFERRAL PROGRAM

Songoven offers you the opportunity to participate in a referral program in exchange for credits to be used on Songoven's platform. The referral program is designed to give you and your social network the opportunity to enjoy the benefits of Songoven, together.

If you wish to refer a personal contact to Songoven, you have to click on the designated icon on your user account to get your personal referral link. This link may be shared with your personal contacts and loved-ones using a direct personal email, social media and any other public platforms of your choice. You may post your referral link on a social media outlets or send it via a general mailing list of contacts so long as you comply with the Terms. You may not send the link by using unlawful methods (such as bulk mailing, or "spam" distribution etc.) (the "Unlawful Distribution Methods"). You may not use the referral link for commercial purposes or in order to generate profits. Any "Eligible Recipient" of the referral link (as defined below), will be prompted to open their own User Account on the Songoven platform, and in so doing, it will connect them to you as a referral source. "Eligible Recipients" mean individuals, who are members of your family, friends, and other personal contacts who are not Users of the Songoven platform as of the date they receive your referral link and who received your referral link in compliance with the above rules. It is hereby clarified that Eligible Recipients do not include (i) individuals who received a referral link from another User prior to the receipt of your referral link (whether or not the same email address was used); (ii) individuals who already have a User Account on the date you sent them the referral link (iii) individuals with respect to which Songoven already paid a referral credit; (iv) commercial contacts such as corporations, or other parties referred to for commercial purposes; (v) persons who received the referral link through Unlawful Distribution Methods; or (v) yourself, using another email address. For this purpose, Songoven will use the name, email address or other identifying information to determine duplication of Eligible Recipients and may use other means available to it to determine whether the referral link was sent via Unlawful Methods of Distribution.

If you refer an Eligible Recipient (as defined above) to Songoven (by using our designated links as described above), both you and the Eligible Recipient will be entitled to certain benefits. The Eligible Recipient will receive a one-time credit equal to $5 on the date the Eligible Recipient opens a User Account using the referral link provided by you. When the Eligible Recipient makes his first purchase on the Songoven platform (using the referral link you sent), you will be entitled to a one-time credit, equal to $5. (Both credits are a "referral credit"). It is hereby clarified that the referral credits given to you and the Eligible Recipient will only be granted if (i) the new User is an Eligible Recipient, as defined above; (ii) if the User Account was opened by using the referral link sent by you; and (iii) if Songoven did not pay a referral credit to any other person in connection with the same Eligible Recipient. If the Eligible Recipient opens a User Account without using your referral link, neither you nor the Eligible Recipient will be entitled to the referral credits described above. Songoven reserves the right to withhold a referral credit from you or the Eligible Recipient in any event when Songoven determines, in its sole discretion that you used Unlawful Methods of Distributions to refer the holder of the referral link, and/or that the holder of the referral link is not an Eligible Recipient, or when any other term hereunder has been violated or abused.

The referral credit balance granted to you and/or the Eligible Recipient may be used to purchase all products and services of Songoven, including Songs, add-ons, and any other products or services available for purchase, as you and/or the Eligible Recipient see fit. Each item purchased by you or the Eligible Recipient can be paid for using the option of "credit balance" as a payment option. If used, the cost of the product/service purchased will be charged against the credit balance available for the User Account. If the total cost of products/services purchased by the holder is lower than the total available credit balance, the unused balance shall remain available for the holder to use in the future until the credit balance is fully used. If the total cost of the products/services purchased by the holder is higher than the total available credit balance, the holder will be required to pay the difference using other methods of payment. Notwithstanding the foregoing, it is hereby clarified that the credit balance is not to be treated as a credit card, a charge card, a debit card, or other form of extended credit and is a unique benefit given to be used solely with respect to the Songoven products and services. The referral credit cannot be redeemed for cash and cannot be used to purchase anything outside of the Songoven platform. The referral credit cannot be replaced by a credit balance on another payment platform (such as credit card) but it may be used to purchase a Songoven gift card. The referral credit is a personal benefit granted to you and any Eligible Recipient referred by you. Therefore, the referral credit cannot be assigned or transferred to another person.

Songoven reserves the right to terminate the referral program or change its terms and conditions at any time, without notice. Any referrals made by you prior to the date of termination of the referral program, will be honored and the referral credits therefor paid in due course.

 

8. RULES OF CONDUCT

You agree to comply with all applicable laws and Songoven's rules of conduct, when accessing or using the Site and/or the User Account, and you may only access or use the Site and/or the User Account for lawful purposes (e.g., no use of Songs for purposes of blackmail, defamation, or other unlawful activities).

You represent and warrant that you have full right and authority to use the User Account and to be bound by these Terms. You agree that you will comply fully with these Terms and all applicable domestic and international laws, regulations, statutes, ordinances that govern your use of such User Account. Without limiting the foregoing and in recognition of the global nature of the Internet, you agree to comply with all federal, state, local and international rules regarding online conduct. You also agree to comply with all applicable laws affecting the transmission of content or the privacy of persons.

You shall not defraud, or attempt to defraud, Songoven, Eligible Recipients, gift card recipients, or any others, and you shall not act in bad faith in your use of the Services, including the Referral Program.

If Songoven determines that you have acted in bad faith and/or in violation of these Terms, or that your actions fall outside of reasonable standards, Songoven may, at its sole discretion, terminate your User Account(s) and prohibit you from using the Site, it may withhold any referral credits, or void any other benefits or credits granted to you. You agree that your use of the User Account shall be lawful and that you will comply with the usage rules and will not engage in any unlawful, fraudulent, abusive or willful conduct. In furtherance of the foregoing, and as an example and not as a limitation, you agree that you shall not:

Violate any of the Rules of Conduct specified in the General Terms of Use when using the User Account;

Engage in Unlawful Methods of Distribution in connection with the Referral Program and/or abuse the program in any other manner, including by means of fraud, or other willful behavior; or

Infringe or violate any patent, copyright, trademark, trade secret or other property right; breaches a duty of confidentiality by which you are bound due to a contractual or fiduciary relationship, including in connection with any Song.

 

9. DISCLAIMERS AND LIMITATION OF LIABILITY

The services are provided on an "as is" and "as available" basis. Songoven disclaims all representations and warranties of any kind, whether express, implied, or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Songoven makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, or availability of the services, or that the services will be uninterrupted or error-free. Songoven further does not warrant that the Services will be secure or uninterrupted.

Songoven makes no warranties, express or implied, as to any matter whatsoever, including, without limitation, the condition of the Song, its merchantability, its design, its capacity, its performance, its material, its workmanship, its fitness for any particular purpose, or that it will meet the requirements of any laws, rules, specifications, or contracts which provide for specific apparatus or special methods. Songoven further disclaims any liability whatsoever for loss, damage, or injury to you or any third party as a result of any defects, latent or otherwise, in the Song. Songoven shall not be liable in any event to you or any third party for any loss, delay, or damage of any kind or character resulting from defects in, or inefficiency of, the Song.

Furthermore, Songoven assumes no liability or responsibility for any direct, indirect, special, incidental, punitive or consequential damages including without derogating personal injury, property damages and/or monetary damages, of any nature whatsoever, arising out of the use of or the inability to use the Services, the Songs (including with respect to any intellectual property infringement claims.

WITHOUT DEROGATING FROM THE ABOVEMENTIONED, IN NO EVENT WILL SONGOVEN, ITS MANAGERS, DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, AFFILIATES, EMPLOYEES, CONSULTANTS, SERVICES PROVIDERS AND/OR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF SONGOVEN, BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR SONGOVEN HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE INCLUDE ANY INFRINGEMENT, DAMAGES, LOST PROFITS, LOST INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY SONG, THE USE OF OR INABILITY TO USE THE SERVICES OR THE SONG, ANY UNAUTHORIZED USE OF SONGOVEN’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVERS BY ANY THIRD PARTY, AND/OR; FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY INFORMATION TRANSMITTED, OR OTHERWISE MADE AVAILABLE, VIA OUR SERVICES OR OUR SERVERS OR CLOUD STORAGE; FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE ABILITY TO USE THE SONG WITHOUT PERMISSION; REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SONGOVEN, EVEN IF SONGOVEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SONGOVEN SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF THE USE OF OR RELIANCE ON THE SERVICES OR INABILITY TO USE THE SERVICES, EVEN IF SONGOVEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT SONGOVEN SHALL NOT BE LIABLE FOR ANY NEGLIGENT OR WRONGFUL CONDUCT BY ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM AND/OR ASSOCIATED WITH THE FOREGOING RESTS ENTIRELY WITH YOU. IN THE EVENT THAT DESPITE THE EXPLICIT PROVISIONS OF THIS PARAGRAPH, SONGOVEN IS FOUND LIABLE FOR ANY DAMAGES, SONGOVEN’S MAXIMUM LIABILITY FOR ANY SUCH DAMAGES OF ANY KIND, SHALL NOT EXCEED $10 USD.
 

Indemnity: You agree to indemnify and hold Songoven, and each of its managers, directors, officers, shareholders, partners, affiliates, employees, consultants, Services providers and/or any other person or entity acting on its behalf (each a “Songoven Indemnified Party”), harmless from any and against any claim, demand, loss, liability, damage, cost or expense (including attorneys’ fees) arising out of or in connection with any of the following: (i) your use of and access to the Services; (ii) your breach or violation of any of these Terms; (iii) your violation of any third party right, including without limitation to any privacy, data protection, copyright or property right; (iv) claims, demands, suits, or proceedings made or brought against any Songoven Indemnified Party by a third party alleging a breach by you or anyone with access to your User Account of any applicable local, state, federal and foreign laws.

The provisions set forth in in this §‎10 shall survive the termination of the Subscription Agreement and shall be enforceable by equitable relief.

 

10. BINDING ARBITRATION CLAUSE

You and Songoven agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Songoven, and not in a court of law.

YOU ACKNOWLEDGE AND AGREE THAT YOU AND SONGOVEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Unless both you and Songoven otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Songoven each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

 

Rules and Governing Law

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Clause.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Clause, including any claim that all or any part of this Arbitration Clause is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Clause evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Clause or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.

Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure: Unless you and Songoven otherwise agree, the arbitration will be conducted in New York, NY. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Songoven submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator's Decision: The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The side which prevails in arbitration will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.

Severability and Survival: If any portion of this Arbitration Clause is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Clause or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Clause; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

 

11. MISCELLANEOUS

Choice of Law: This Agreement shall be deemed to be made, governed by, and construed in accordance with the laws of New York, without giving effect to the conflicts of law principles thereof, except as may be otherwise provided in the Binding Arbitration Clause set forth in Paragraph ‎11. The foregoing choice of law and forum selection provisions do not apply to the Arbitration Clause in Paragraph ‎11 or to any arbitrable disputes as defined therein.

Paragraph Headings: The paragraph headings are inserted herein only as a matter of convenience and for reference and in no way are intended to be a part of these Terms or to define, limit, or describe the scope or intent of these Terms or the particular paragraphs hereof to which they refer.

Severability: If any provision or a portion of any provision of these Terms is held to be unenforceable or invalid by a court of competent jurisdiction, the validity and enforceability of the enforceable portion of any such provision and/or the remaining provisions shall not be affected thereby.

Successors: These Terms shall be binding upon, and shall inure to, the benefit of the successors and permitted assigns of the parties.

Singular and Plural: Whenever the context shall so require, the singular shall include the plural, and the plural shall include the singular. In these Terms, the words "including" and "include" mean "including, but not limited to."

Waiver: Songoven's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Songoven in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Clause of these Terms.

Assignment: You may not assign these Terms without Songoven's prior written approval. Songoven may assign these Terms at its sole discretion without your prior consent. Any purported assignment in violation of this section shall be void.

Notice: Songoven may give notice by means of a general notice on the Services, telephone or text message to any phone number or email message provided in connection with your User Account, or by written communication sent by first class mail or pre-paid post to any address connected with your User Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email, telephone or text message).