Last updated: February 14, 2024
Welcome to Music.AI, the Audio Intelligence Platform™!
We are thrilled to offer you cutting-edge artificial intelligence tools designed to empower your company's growth and innovation. Through these Terms of Service, we outline the expectations and obligations related to the use of our services to ensure a transparent and trusted partnership. Please read the following terms carefully.
Let's create amazing things together!
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
These terms of service (“TOS”) are a legal agreement between OBS Systems, Inc. d/b/a Music AI (“Music.AI”, “us”, “our” or “we”) and you (“Customer”, “you” or “your”).
BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING MUSIC.AI'S PRIVACY POLICY AND OTHER DOCUMENTS AND TERMS REFERENCED HEREIN (TOGETHER, THESE "TERMS"). IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND MUSIC.AI'S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY MUSIC.AI AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration Notice: Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MUSIC.AI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
(a) Changes to these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies Your rights or obligations, we will notify You of the modified Terms by email to the address You provided in Your user profile, or in a notification in the Service or on our website. Material modifications will be effective upon Your acceptance of such modified Terms or upon Your continued use of the Service after we send or post our notification of the changes, whichever is earlier. Immaterial modifications are effective upon publication. Notwithstanding the foregoing, a change to the Music.AI contracting parties will be effective immediately upon sending or posting notification of such change, which We may do in our sole discretion from time to time.
(b) Additional Terms. Certain features of the Service may be subject to additional terms which we may post or may be presented to you when you elect to make use of such features (collectively, “Additional Terms”). By using such features, or any portion thereof, you agree to be bound by the Additional Terms. In the event of any conflict between the terms herein and the Additional Terms governing such features, the Additional Terms will govern your use of such features except as otherwise set forth herein.
(c) Order Forms/Executed Agreements. In the event we enter into an order form or similar document which incorporates these Terms (an “Order Form”), the Order Form shall supersede these Terms in the event of a conflict. In the event we execute a stand-alone definitive agreement (an “Executed Agreement”), such Executed Agreement will govern your use of the features of the Service referenced therein. To the extent you make use of features of the Service which are not explicitly covered in the Executed Agreement, these Terms shall govern.
(a) Account Registration. To access the Service, you must register for an account. When you register for the Service, you will be required to provide us with, or authorize a third-party on your behalf to share with us, some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account, including the use of the Service by your personnel and all fees incurred under your account. You may not create duplicate accounts in an attempt to circumvent paying any fees due and payable for your continued access to the Service, including to take advantage of any promotional offers that are not directed at you. If you believe that your account is no longer secure, then you should immediately notify us at support@music.ai.
(b) Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) if you are 13 to 17 years of age, your parent or guardian has affirmatively consented to your access to and use of the Service; (c) you have not previously been suspended or removed from the Service; and (d) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company (an “Organization”), the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
(c) Evaluation Access. If you are accessing or making use of the Service on a no-fee, trial, or evaluation basis (the “Evaluation Access”), you may use the Service and any Output solely for internal testing and evaluation to determine whether to purchase the Service from us. You acknowledge and agree that we may terminate your Evaluation Access at any time. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, WE WILL HAVE NO WARRANTY, REPRESENTATION, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO YOUR EVALUATION ACCESS.
(a) Description. Subject to your compliance with these Terms, we will provide you with access to products and/or services through or in connection with the Music.AI platform (the “Service”). The Service is licensed to you in accordance with these Terms, not sold to you. The Service consists of a suite of software-as-a-service applications which are comprised of various application programming interfaces, downloadable applications, web applications that allow users to upload or otherwise transmit media, communications, and data to, and generate and receive results by processing that media, communications, and data using certain technologies, including, without limitation, artificial intelligence and machine learning. The Service will also consist of other products and/or services as set out in Order Forms.
(b) Output of the Service. Subject to these Terms, You may use the Service to generate results and outputs (“Output”), for example data, text, audio, video, and artificial intelligence models. These Terms will apply to your use of the Service as well as your use of any Output you create, generate, or otherwise receive from use of the Service.
(c) Artificial Intelligence Disclaimer. We use artificial intelligence and machine learning, amongst other technologies, to provide the Service. You acknowledge and agree that the technology used by us to provide the Service is experimental, rapidly evolving, and subject to unexpected Outputs. The Service may provide Output that contain errors, omissions, not accurately reflect real events, places, people, or facts, may provide inaccurate or offensive content, or may, in some cases, produce the same content for multiple customers. You acknowledge and agree that we will not be liable for any mistakes, inaccuracies, omissions, or offensive material created using the Service. You rely upon all content and Outputs at your sole risk.
(d) Limited License. Subject to your agreement to these Terms, your ongoing compliance with these Terms and any other applicable Music.AI policies or requirements, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Service, including any copy of downloadable software or applications provided or made available to you by Music.AI in connection therewith, on a computer or device that you own or control solely for your own internal business or individual purpose.
(e) Permitted Use; Restrictions. You represent, warrant, and covenant that you will use the Service and the Music.AI Materials (as defined below) only in a manner that complies with (i) all applicable laws and regulations, which is hereby incorporated into the Terms by reference, and (ii) these Terms. Without limiting the foregoing, you shall not, and shall ensure that your authorized users do not, use the Service or the Music.AI Materials (i) to perform any activity that is unlawful, or that is harmful to or interferes with any use of the Service, or the network, systems, or facilities used to provide the Service; (ii) in violation of any third party’s privacy, intellectual property, right of publicity, or other rights; (iii) to perform any activity intended to circumvent the security measures of Music.AI or any third party. Further, you shall not, and shall ensure that your authorized users do not, (i) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or the Music.AI Materials, (ii) use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of our website, the Service or the Music.AI Materials, (iii) use any Output to train artificial intelligence or machine learning models either as sole input or as part of a wider training dataset unless otherwise explicitly authorized by us in writing, or (iv) use the Service, the Music.AI Materials, Output, or any portion thereof as the basis for developing a competitive solution (or contract with a third-party to do so), or allow third-parties to use or exploit the Service separate from your product(s) or services without Music.AI’s express written consent. If Customer becomes aware of any breach of the foregoing, Customer will immediately notify Music.AI by emailing support at support@music.ai and remedy the situation, including, if necessary, by limiting, suspending, or terminating any relevant user’s access to the Service. Music.AI reserves the right to suspend your access to the Service and the Music.AI Materials if reasonably necessary to prevent harm to anyone, with such notice as may be reasonable in the context of the prospective harm.
(f) Modification to the Service. We reserve the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability for any change to the Service, including the deprecation of any features or other paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service.
(g) Third Party Modules. Certain features of the Service may be provided by third-parties (each a “Third-Party Module); for example, you may be able to process Customer Content using an AI model provided by a third-party, or incorporate such AI model into a workflow. By using a Third-Party Module, you hereby authorize us to transfer your information and your Customer Content to the applicable third-party. THIRD-PARTY MODULES ARE NOT UNDER OUR CONTROL, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WE MAKE NO GUARANTEES WITH RESPECT TO YOUR USE OF ANY THIRD-PARTY MODULE, ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY’S USE OF YOUR EXPORTED INFORMATION OR CUSTOMER CONTENT, OR THE OUTPUT OF THE THIRD-PARTY MODULE. You agree that your use of any Third-Party Module and the Output of such will also be subject to any Additional Terms provided by the third-party, and such third-party has the right to enforce such Additional Terms against you. Notwithstanding anything contained herein, in the event you use a Third-Party Module in combination with a Service feature provided by us (for example, combining a Third-Party Module with a Music.AI provided module in a single workflow), and there is a conflict between the Additional Terms provided by the third-party and these Terms, the more restrictive terms will govern your use of such combined functionality and the Output of such combined functionality.
(h) Open-Source Modules. Certain features of the Service may be made available to you on an open-source basis and subject to an “open source”, “creative commons”, or other similar license (each an “Open-Source Module”). The usage rights of the Additional Terms applicable to the Open-Source Modules are not intended to override these Terms with respect to your use of the Open-Source Module; provided, however, in the event you use an Open-Source Module in combination with a non-Open-Source Module (for example, combining an Open-Source Module with a non-Open-Source Module in a single workflow), the more restrictive terms will govern your use of such combined functionality and the Output of such combined functionality.
(i) Beta Features. We may, in our sole discretion from time to time, add new features to the Service that may be described as "Beta" features or services (collectively, "Beta Features"). These Beta Features will be considered part of the Service and all provisions of these Terms relating to the Service will apply to these Beta Features as well. Beta Features may include partially functional or non-functional features of the Service, and you authorize us to use the usage data from your use of Beta Features for product development research and analysis. You acknowledge that your use of Beta Features is optional, and if you elect to use a Beta Feature, you agree to do so at your own risk. We may terminate Beta Features at any time, without warning, and without any liability to you.
(j) Additional Terms for Specific Features. Without limiting the generality of anything contained herein, the following terms will apply to your use of specific features and the Output of such features, including any workflows in which they are incorporated:
Cyanite Module. The Third-Party Module provided by Cyanite, elceedee UG, (the “Cyanite Module”), is a music indexing tool which, among other things, can categorize pieces of music and return metadata about the processed track. Customer shall not, and shall ensure that its authorized users do not, use the Output of the Cyanite Module, including the Output of any workflow which incorporates the Cyanite Module, to train artificial intelligence or machine learning models either as sole input or as part of a wider training dataset. Synthetic Voice Module. Music.AI may provide features as part of the Service which allow you to digitally imitate a person’s voice using artificial intelligence models (the “Synthetic Voice Module”), either through Music.AI-created voice models or using your own recordings to create a custom voice model. If you create your own custom voice model using the Service, you are responsible for ensuring that you have all rights, permissions, and consents to upload the recordings and to create and use a voice model of the applicable voice owner. You may not use the Synthetic Voice Module, including any Output generated using the Synthetic Voice Module, (a) for any illegal, fraudulent, or discriminatory purpose; (b) to impersonate an individual (whether alive, dead, or fictional) without permission; (c) to spread false information; (d) to create any content that is obscene, defamatory, libelous, or pornographic, or threatening; (e) to promote or engage in any form of hate speech, abuse, or harassment; or (f) for any other harmful purpose as determined by Music.AI in its sole discretion.
(a) General. Except as otherwise agreed upon, including in an Order Form, the fees for your use of the Service are set forth on our pricing page available at https://music.ai/pricing/ and you must maintain a positive balance in your account to use the Service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for, all fees are in U.S. Dollars and exclusive of any applicable taxes. All amount you pay to us are non-refundable, including any balances that may remain in your account, except as required by law. All payments are processed by a third-party payment processor (“Payment Processor”), and such payments will be subject to the Payment Processor’s terms of service. You agree to keep all your payment and contact information up to date and agree that you may be prevented from using the Service if such information is no longer current.
(b) Subscriptions. The Service may include certain plans with automatically recurring payments (a “Subscription”), for example you may sign up for a monthly plan. The pricing for each such Subscription may vary from plan-to-plan and will be presented to you when signing up for the plan you choose. Your Subscription will automatically renew for successive periods of the same duration until you cancel or we terminate your account. You authorize Music.AI and its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of your Subscription, all accrued sums on or before the payment due date. You may cancel your Subscription by going to the “Billing” page when logged into your account, clicking on the “Change” button, and then clicking the “Cancel Plan” button, or by contacting us at support@music.ai. If you elect to terminate your Subscription, the termination will be effective at the end of your then current Subscription Period.
(c) Authorization. The Payment Processor will collect, use, and process your information, including credit card information for purposes of processing your payments. You authorize Music.AI and its Payment Processor to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Music.AI to your payment method provided, including all applicable taxes and recurring fees if you choose a Subscription. If you pay any fees with a credit card, then we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
(d) Changes to Fees. We reserve the right to change the fees for the Service, including by adding additional fees or charges. We will provide you advance notice of any such changes. Your continued access or use of the Service after we implement the fee changes constitutes acceptance of those fee changes; if you do not accept the fee changes, you must discontinue use of the Service before we implement the fee changes.
(e) Promotional Offers. We may in our sole discretion make some or all of the Service available to customers on a trial basis, free of charge, or at a promotional rate (“Promotional Offer”). These Promotional Offers, unless made to you, will not apply to your use of the Service or these Terms. Unless a promotional offer is advertised as available to past or current customers of the Service, Promotional Offers are only available to new customers and only one of any each Promotional Offer may be redeemed per customer.
(f) Delinquent Accounts. We may suspend or terminate your access to the Service, including fee-based portions of the Service, if any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any of the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription is due, then we reserve the right to delete your account and any information or Customer Content (defined below) associated with your account without any liability to you.
(a) Term. These Terms will continue in force until terminated in accordance with these Terms (the “Term”).
(b) Termination. We may terminate these Terms for convenience at any time. You may terminate these Terms at any time by deleting your account. If you terminate these Terms, you will not receive a refund of any prepaid fees for the Service or amounts you put in your account, and will remain obligated to pay any fees incurred for use of the Service prior to termination. Notwithstanding the foregoing, if there is an Order Form in effect, then these Terms will not terminate until such Order Form has expired or been terminated. If you violate any provision of these Terms or if you use the Service in violation of any applicable law or regulation (“Applicable Law”), your permission from us to use the Service will terminate automatically. In addition, we may, in our, sole discretion, terminate your user account or suspend or terminate your access to the Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Service, or for any reason or no reason, with or without notice. Upon the termination of your account or these Terms for any reason, we may, at our option, delete any data associated with your account.
(c) Effect of Termination. Upon the expiration or termination of these Terms, (i) you will cease all use of the Service and we may disable your access and usage rights in connection with the Service, and (ii) any outstanding fees will remain due. The expiration or earlier termination of these Terms will not relieve any party of any obligations that may have accrued hereunder prior to the effective date of such expiration or termination. The following provisions shall survive the expiration or termination of these Terms: Sections 4(e), 4(g), 4(h), 4(j), 5 (to the extent any obligations remain outstanding), 6, 8, 9, 11, 12, 14, 15, and 16.
(a) Customer Content. In connection with your use of the Service you may submit and/or generate content, data, or Outputs (collectively “Customer Content”), which may include, without limitation, music, video, photos, audio (including sound, voice recordings, and musical recordings embodied in the video or audio), images, folders, text, software, applications, AI or machine learning models, and other works of authorship or other works or materials. You are solely responsible for the Customer Content you provide, generate, or otherwise make available to us and the consequences of providing and/or creating Customer Content, including, without limitation, ensuring that you have all permissions, consents, licenses, and authorizations to provide us with, process and/or create the Customer Content with the Service. We disclaim any and all liability in connection with the Customer Content. You represent and warrant that you possesses all rights necessary for us to receive, process, and create the Customer Content in the ways contemplated by these Terms, and that the Customer Content and the use of the Customer Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law or regulation. You further represent, warrant, and covenant that (i) you will comply with all Applicable Laws relating to privacy and data protection with respect to your access to and use of the Service, including providing all individuals to whom the Customer Content relates with legally adequate notice regarding the use of the Service, and obtaining any and all consents and authorizations from such individuals necessary for us to use the Customer Content in the ways contemplated by these Terms, including, but not limited to, parental consent as required under Applicable Law; (ii) you will not store, transmit, or otherwise process any information via the Service that falls within the definition of “Protected Health Information” under the HIPAA Privacy Rule (45 CFR § 160.103), unless we separately enter into a HIPAA Business Associate Agreement; and (iii) any Customer Content provided to us or generated using the Service hereunder will be made available or generated in accordance with all Applicable Law and all contracts to which you are a party. Upon request, you will provide copies of any notices or consents demonstrating that you acquired and provided the Customer Content in a lawful and non-deceptive manner. We may use the Customer Content to provide the Service to you, to improve or develop our products and services, and, subject to Section 7(f) below (Personal Data Processing), as otherwise described in our Privacy Policy, or granted through applicable agreements between us.
(b) No Obligation to Provide Storage. Unless otherwise specified in a separate agreement between us, we are under no obligation to store, maintain, or provide you with copies of any Customer Content you provide or any Outputs you generate using the Service, and we reserve the right to delete any such Customer Content and Outputs at any time without notice to you. In the event we do provide storage, we may, in our sole discretion, limit or remove the ability for you to access Customer Content or store Outputs at any time without notice to you. You acknowledge and agree that you are solely responsible for maintaining backups, and you should retain copies of any Customer Content and immediately download Outputs you have generated using the Service. Without limiting the foregoing, we may retain the Customer Content, as provided to us, for such length of time as may be required by Applicable Law, and indefinitely in anonymized form.
(c) Limited License Grant to Customer Content. By uploading, transmitting, posting, publishing, or generating Customer Content using the Service, you grant us a worldwide, non-exclusive, irrevocable, royalty-free, fully paid, unrestricted right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of digital audio transmission), reproduce, modify, communicate to the public, create derivative works, distribute, and otherwise use the Customer Content, in whole or in part in any media formats and through any media channels now known or hereafter developed, in connection with providing, maintaining, developing, and improving the Service, and as otherwise provided herein.
(d) Usage Data. As between you and we, we own all own all data, algorithms, processes, and analytic models developed or provided by us or on our behalf that constitute all or a portion of the Service, or are otherwise used to provide the Service to you, including without limitation (i) all data, algorithms, processes, and analytic models embodied in the technology underlying the Service, and (ii) subject to Applicable Laws, data derived from your use of the Service, including data elements derived from Customer Content (provided that if data is derived from Protected Health Information, then such use is in accordance with HIPAA and the terms of the applicable Business Associate Agreement), and any conclusions, reports, or other data resulting from analysis of such data (collectively, the “Usage Data”). You have no rights to use or process any Usage Data. Usage Data excludes any unprocessed Customer Content which will we be owned by you.
(e) Customer Content Disclaimer. You understand that, when using the Service, you may be exposed to Customer Content from a variety of sources and acknowledge that Customer Content may be inaccurate, offensive, indecent, objectionable. We are under no obligation to edit or control Customer Content that you or other users provide or use and will not be in any way responsible or liable for Customer Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to Customer Content. If notified by a user or content owner that Customer Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Customer Content, which we reserve the right to do at any time and without notice. We reserve the right to disclose the identity of the party which provided any Customer Content to cooperate with any governmental request, court order, or investigation. For clarity, we do not permit infringing activities on the Service.
(f) Personal Data Processing. You acknowledge and agree that with respect to Personal Data, we are a “processor” and “service provider”, and you are a “controller” and “business”, as these terms are understood under Applicable Law. To the extent that we process any Personal Data of users that view, interact with, or otherwise make use of the Service (“Users”) on your behalf, we both agree to comply with the PRIVACY POLICY, which is incorporated by reference. You authorize us to process this data on your behalf by hosting your data. You also authorize us to engage other parties as processors. For purposes of this section, "Personal Data" means the personal data we collect and use about you as detailed in our PRIVACY POLICY. For clarity, the PRIVACY POLICY does not apply to the processing of Personal Data relating to your employees, contractors, or agents, including for billing, account management, and product development purposes, and such other purpose. For such purposes, we shall be considered a “controller” and shall be entitled to transfer such information to any country in which we operate.
(a) The Service is owned by us. The Service, including, without limitation, the visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, artificial intelligence/machine leaning models, and all other elements of the Service provided by us (the “Music.AI Materials”) are protected by intellectual property and other laws. All Music.AI Materials included in the Service are our property or of our third-party licensors. Except as expressly authorized by us, you may not make use of the Music.AI Materials. You will not remove, alter, or conceal any proprietary rights (e.g. copyright) notices incorporated in or accompanying any portion of the Service or related products or services. There are no implied licenses in these Terms and we reserve all rights to the Music.AI Materials not granted expressly in these Terms.
(b) Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service ("Feedback"), then you hereby grant OBS an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
(c) Use of Music.AI Trademarks. Subject to your full compliance with these Terms, and our trademark usage guidelines which we will provide to you, you may request to use the phrase “Powered by Music.AI™”, or "Empowering creative potential™", together with the Music.AI brand materials (the “Music.AI Marks”), to describe your products and services that integrate with and rely on the Service. We reserve the right to revoke or limit the foregoing authorization in its sole discretion by written notice to you, and you may not use any other of our trademarks or service marks without our prior written consent. You agree that you will not use or register any trademarks, service marks, or domain names that are confusingly similar to any Music.AI Marks, and that all goodwill associated with the Music.AI Marks will inure to our sole benefit. Upon termination or earlier revocation of our authorization, you will promptly cease all use of the Music.AI Marks.
(a) Respect of Third-Party Rights. We respect the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
(b) DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
OBS Systems, Inc. d/b/a Music AI
Attn: Copyright Agent
4001 South 700 East, Suite 500, Salt Lake City, Utah 84107 Email: copyright@obs.ai
(c) Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
Your Notification of Claimed Infringement may be shared by us with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to us making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
(d) Repeat Infringers. Our policy is to: (a) remove or disable access to material that we believe in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. We will terminate the accounts of users that are determined by us to be repeat infringers. We reserve the right, however, to suspend or terminate accounts of users in our sole discretion.
(e) Counter Notification. If you receive a notification from us that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in Section 14.2 (DMCA Notification), and include substantially the following information:
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
(f) Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to us in response to a Notification of Claimed Infringement, then we will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that we will replace the removed content or cease disabling access to it in 10 business days, and we will replace the removed content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless our Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on our system or network.
(g) False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” We reserve the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
(a) You acknowledge that there may be locations in which we are prevented from providing the Service due to Applicable Law (e.g., embargoed countries). We may, in our sole discretion, elect to suspend, discontinue, limit, or modify the Service as may be required to comply with any such restrictions. Furthermore, we are under no obligation to provide the Service in any location which are subject to such restrictions, and we will have no liability to you for our failure to provide the Service due to such restrictions.
(b) You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
(c) You shall comply with all applicable export control laws and regulations, including the Export Administration Regulations (“EAR“) maintained by the U.S. Department of Commerce, and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC“). Without limiting the foregoing, you agree not to — directly or indirectly — export, reexport, transfer, or otherwise provide access to the Service or technologies (including products derived from or based on such technologies) received under these Terms to any destination, entity, or person prohibited by U.S. or applicable non-U.S. laws, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Music.AI, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Music.AI Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH OR GENERATED USING THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH OR GENERATED USING THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE OR GENERATED USING THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WE DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE MUSIC.AI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH OR GENERATED USING THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MUSIC.AI ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM: (i) THE SERVICE; (ii) ANY ERRORS, INACCURACIES, OR OMISSIONS IN THE CONTENT PROVIDED THROUGH THE SERVICE; (iii) YOUR ABILITY OR INABILITY TO UPLOAD, EXPORT, RETRIEVE, TRANSFER, OR REMOVE ANY CUSTOMER CONTENT OR OUTPUT FROM THE SERVICE; AND (iv) YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER CONTENT AND OUTPUT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION (DISCLAIMERS; NO WARRANTIES) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MUSIC.AI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS, OR CONTENT ON THE SERVICE OR GENERATED USING THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY OF THE MUSIC.AI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
(b) EXCEPT AS PROVIDED IN SECTIONS 15(E) (COMMENCING ARBITRATION) AND 16(G) (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE MUSIC.AI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (i) THE AMOUNT YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; AND (ii) US$100.
(c) EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(a) Definition. For the purposes of these Terms, “Confidential Information” means all non-public information of Music.AI and the Music.AI Entities, including non-public information relating to the features, functionality and performance of the Service and information pertaining to their business strategy, activities and operations (whether as then being conducted or proposed to be conducted, business relationships, employees, trade secrets, and other technical or business information and any information, data or reports prepared or compiled under these Term. Confidential Information will not be deemed to include any information which (a) is publicly known at the time of the disclosure; (b) becomes publicly known other than by breach of these Terms of; (c) becomes known to you, without restriction, from a source free of any obligation of confidentiality; or (d) is independently developed by you or already in your possession without the benefit of the Confidential Information, as shown by valid records.
(b) Obligations. You agree (a) that you will not disclose to any third party or use any Confidential Information except as expressly permitted by these Term, and (b) that you will take all reasonable measures to maintain the confidentiality of all Confidential Information in your possession or control, which will in no event be less than the measures you use to maintain the confidentiality of Your own information of similar importance. Notwithstanding the foregoing, you may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, so long as you notify us sufficiently in advance of such disclosure to give us the reasonable opportunity to protect such information, as permitted by law, or (ii) on a “need-to-know” basis, under a contractual obligation of confidentiality at least as strict as that set forth in this section, to your legal counsel and accountants, and (with our prior approval) banks and other financing sources (who are not our competitors) and their advisors.
(c) Publicity. We may reference your business, use of the Service, and include your name, logo, trade dress, or service marks in our marketing, promotional and other related sales materials, in case studies, and on our web site, and use your Feedback and quotes (without specific attribution to an individual) in so doing, and you hereby grants us a limited license to do so; provided that, any attribution of quotes to a specific individual will be subject to your prior written consent.
15. Dispute Resolution and Arbitration
(a) General. Except as described in Section 15(b) (Exceptions) and 15(c) (Opt-Out), you and we agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
(b) Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to OBS Systems, Inc. d/b/a Music AI, Attention: Legal Department - Arbitration Opt-Out, 4001 South 700 East, Suite 500, Salt Lake City, Utah 84107 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once we receive your Opt-Out Notice, this Section 15 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 16(e) (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(d) Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by these Terms. The AAA Rules and filing forms are available online at http://www.adr.org/, by calling the AAA at +1-800-778-7879, or by contacting us.
(e) Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Our address for Notice is: Music AI, 4001 South 700 East, Suite 500, Salt Lake City, Utah 84107. The Notice of Arbitration must: (a) identify the name, email address, or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if we have received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
(f) Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your (residence) unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your [residence/billing address]. During the arbitration, the amount of any settlement offer made by you or OBS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
(g) Arbitration Relief. Except as provided in Section 15(h) (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount we offered before an arbitrator was selected, we will pay to you the higher of: (a) the amount awarded by the arbitrator; and (b) US$10,000. The arbitrator's award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
(h) No Class Actions. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
(i) Modifications to this Arbitration Provision. If we make any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(j) Enforceability. If Section 15(h) (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16(e) (Governing Law) will govern any action arising out of or related to these Terms.
(a) General Terms. These Terms, including the PRIVACY POLICY and any other agreements expressly incorporated by reference into these Terms or agreements in which these Terms are expressly incorporated by reference (for example, and Order Form), are the entire and exclusive understanding and agreement between you and we regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your Customer Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
(b) Force Majeure. Except for payment obligations, neither party will be responsible to the other or to any third-party for any failure, in whole or in part, to perform any obligations under these Terms, to the extent that performance is prevented, hindered, or delayed by fire, flood, earthquake, elements of nature, or acts of God, acts of war, acts or attempted acts of terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, or other labor disputes, power, network, or Internet outages, or any other similar cause beyond the reasonable control of such Party (each a “Force Majeure Event”). In addition, our failure to perform our responsibilities under these Terms or delay in performance will be excused if the non-performance or delay is caused by you, any of your employees or contractors, or any other third-party.
(c) Relationship of the Parties. We are acting solely as an independent contractor to you, and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between us.
(d) No Third-Party Beneficiaries. Except as otherwise explicitly set forth herein or otherwise agreed upon by you and we, these Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
(e) Governing Law. These Terms are governed by the laws of the State of Utah without regard to conflict of law principles. You and we submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Salt Lake County, Utah for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Utah, and we make no representation that materials included in the Service are appropriate or available for use in other locations.
(f) Privacy Policy. Please read the Music.AI PRIVACY POLICY (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The PRIVACY POLICY is incorporated by this reference into, and made a part of, these Terms.
(g) Licensors. Third parties that license content to us in connection with the Service (“Licensors”) are third party beneficiaries of these Terms, and upon your acceptance of these Terms, such Licensors will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
(h) Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our PRIVACY POLICY. Please read our PRIVACY POLICY to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
(i) Contact Information. The Service is offered by Music.AI, located at 4001 South 700 East, Suite 500, Salt Lake City, Utah 84107. You may contact us by sending correspondence to that address or by contacting us at support@music.ai
(j) Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
(k) No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
(l) International Use. The Service is intended for visitors located within countries or territories where the Service is legal and not prohibited by Applicable Law. We make no representation that the Service is appropriate or available for use outside of such countries or territories. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
