Effective date 5/30/22
The “Services” means the music service branded METASOUL, mobile and device applications and all services provided by METASOUL or METASOUL’s vendors, or other third parties with whom METASOUL (as defined herein) contracts to provide the Services that are inherently related to the music service METASOUL or that are compatible for similarly situated digital music services. These may include, but are not limited to websites and applications for desktops, tablets and mobile handsets, set-top boxes and stereo equipment. The Services also include your ability to edit certain Service Content (as that term is defined in Section 8, below) that is specifically cleared for such use (the “Editable Content”) and User Content (as that term is defined in Section 9, below), and save such edited Editable Content and User Content to your own playlist without the ability to share or otherwise reproduce, distribute, publicly perform, or publicly display such edited Editable Content and User Content (the “Edit Functionality”). Each instance of edited Editable Content or edited User Content shall be deemed a “Remix” hereunder.
The Services are provided by MetaSoul, LLC and their affiliated entities, and each of their present, former and future parents, predecessors, successors, assignees, subsidiaries, owners, officers and directors (whether acting in such capacity or individually), agents and attorneys (collectively, “METASOUL,” “we” “us” and/or “our”). You may contact us at: METASOUL –by email at team@MetaSoulmusic.com.
2. PREREQUISITES FOR ACCESS TO THE SERVICE
You need access to the internet in order to use the Services, and any cost for accessing the internet shall be paid by you. This also applies when using the Service via mobile phone, tablet, or other personal device capable of internet connection. If you use the Services via mobile telephone you should familiarize yourself with applicable data transfer costs for your mobile carrier plan. METASOUL does not have any responsibility or liability for data transfer costs you may incur when using the Services. We cannot guarantee that the Services will work with all devices.
METASOUL accepts no responsibility for any lack of functionality that is due to your equipment (including your device, internet connection, operating system or settings and software). Access to parts or all of the Services may be restricted from time to time to allow for repairs, maintenance or updating.
You may not use the Services in any way that is fraudulent or illegal or is expressly prohibited by these Terms. By using the Services, you promise to us that you accept these Terms and that (a) you are 18 years of age or over; or (b) you are between the age of 13 and 17, and have express permission from your parent or guardian to use the Services. If you are under age 13, you are not permitted to use the Services or to submit any personally identifiable information to METASOUL. If METASOUL reasonably believes that you have not told us your true age, we may suspend your use of the Services until you have provided us with acceptable proof of age. If you are a parent or guardian and believe METASOUL may have inadvertently collected personal information from your child, please notify METASOUL immediately by sending an email to MetaSoul – Customer Support at Team@MetaSoulmusic.com detailing the basis of your belief and your request.
The Service requires you to register and create an account for validation. You agree to (a) provide accurate, current and complete information as prompted by any registration forms on the Services; (b) maintain and promptly update such information and any other information provided to METASOUL, to keep it accurate, current and complete; (c) maintain the security of your password and identification; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
METASOUL reserves the right to suspend or remove your account or prohibit your use of the Services, without responsibility or liability to you, if activities occur on your account that we believe breach the Agreement.
3. PURCHASE, PRICE INFORMATION, PAYMENT TERMS AND REFUND POLICY
(a) Subscription. Certain aspects of the Services provided by METASOUL, third parties, or both may require you to purchase a subscription for a period of time as specified during sign-up (collectively a “Subscription”). Your Subscription, which may start with a seven (7) day trial period, will automatically renew on a monthly or annual basis (as specified during your sign-up) unless you cancel your Subscription as provided in Sections 3(e) and 3(g), or we terminate your Subscription as provided in Section 18. Subscription fees may include applicable taxes. Tax rates are calculated based on the information you provide when registering, and on the rates applicable at the time of your monthly charge. Applicable taxes may vary over time subject to local tax requirements in your location.
(b) Bundles. METASOUL may contract with a third party telecommunication provider to provide the Services to you through a bundle package together with other services provided by such third party provider. The payment terms for such bundle package, as well as other terms and conditions governing your use of the bundle package, may differ from the terms set out in this Agreement. You are solely responsible for reviewing such bundle terms or any other terms governing your use of the services provided by your telecommunication provider before agreeing to any bundle package and accessing the Service via such bundle package. If you have purchased a bundle package, payment will be taken from you by your telecommunication provider. Should you wish to cancel or terminate your subscription via such bundle package or obtain any further information in respect of payment methods, billing cycles, automatic renewals or refunds you must contact your provider. Other than this sub-section (b), Section 3 of this Agreement does not apply to you if you have purchased the Services as part of a bundle package from your telecommunication provider or any other third party.
(c) Promotion/Trials. METASOUL, vendors, or other third parties with whom we contract to provide the Services may offer special promotions/trials with differing conditions and limitations which may be subject to different terms from these Terms. Any additional terms to these Terms will be disclosed at sign-up or in other communications made available to you prior to sign-up. You are solely responsible for reviewing any additional terms governing your use of such special promotions or trials before accessing any special promotions or trials. At the end of the free or promotional trial period, your subscription will automatically renew for further rolling subscription periods of such duration as set out in the product details when you signed up for the trial or promotion and you will start to pay for the subscription. To avoid any charges, you must cancel before the end of the free trial. You are entitled to only one free trial per lifetime. Any attempt to utilize more than one free trial is an unauthorized use of the Services and/or Service Content and amounts to a breach of the Agreement. If METASOUL determines, in its absolute discretion, that you have utilized more than one free trial, METASOUL reserves the right to terminate your access to the Services, Service Content, and/or the Agreement.
(d) Shopping in the Store. To make a store purchase in the MetaSoul store, you will be prompted to sign in to your account. All shopping in the Store is final. You are responsible for backing up each purchase in the METASOUL Store
(f) Billing Cycle. As indicated during sign-up, the fee for certain Subscriptions must be paid in a single upfront payment. The total Subscription fee is due and payable to METASOUL immediately upon sale and your Payment Method will be automatically billed at that time and your Payment Method will automatically be billed at the intervals specified during sign-up.
(g) Automatic Renewal. In order to provide continuous service, you agree that METASOUL will automatically renew a Subscription on or about the date the Subscription expires. Such renewal will be for the same duration of the original subscription term and will be billed at the non-discounted rate for the Subscription as of the date of your enrollment and according to your original billing cycle method. By enrolling in a Subscription, you agree that your Subscription will be subject to the above-described automatic renewals unless you cancel your Subscription in accordance with the terms of this Agreement. You also agree that the amount billed may be different if your original Subscription was purchased using a promotional/trial offer and you authorize METASOUL to charge your Payment Method for such varying amounts as indicated at the time of sign-up. You agree that you are responsible for other charges, including any foreign transaction charges, that may be imposed by credit card providers, payment processors or other third parties in connection with your use of the Subscription. Your Subscription will remain in effect and continue to renew automatically until it is cancelled.
IF YOUR ACCOUNT IS MANAGED THROUGH METASOUL (AND NOT THROUGH A THIRD PARTY) AND YOU WISH TO CANCEL YOUR AUTOMATIC SUBSCRIPTION RENEWAL, you may do so by contacting us at (team@MetaSoulmusic.com), METASOUL will make reasonable efforts to process cancellation requests within two business days from the receipt of the cancellation request. All other cancellations are required to be made directly through the third party that manages your METASOUL Subscription.
(h) Refund Policy. We will not refund any fees paid to us, including any advance charge(s) or payment(s) for any subscription term for the Services, unless otherwise required by law or the terms of this Agreement.
4. SPECIAL OFFERS
If you have received or purchased access to the Services as part of a special offer, campaign or a partner deal (a “Special Offer”), then the terms presented as part of such Special Offer are a part of this Agreement. Special Offers will, unless otherwise specified, only be valid for customers in the country (and state(s)) where it is issued.
5. RESTRICTIONS APPLICABLE TO THE USE OF THE SERVICE
The Services shall be for private use only and use of the Services in commercial or public settings is not permitted.
The Services shall not be used in any manner that may breach the restrictions applicable to the utilization of the Service Content (as defined in Section 8, below). These include, but are not limited to, prohibitions against (i) any form of technical intervention in the Services for purposes of using the Services in any manner other than that intended and permitted under the Agreement; (ii) copying and/or making public any Service Content; (iii) assigning any username or password to anyone else; (iv) circumventing any technical mechanisms within the Services that have been established to protect Service Content from reproduction/distribution; (v) using the Services in violation of applicable law; and (vi) failing to respect applicable geographic/territorial restrictions.
The Services may include components that make use of temporary storage of certain Service Content on the various platforms. You have access to this Service Content for as long as you have a valid Subscription. You are not permitted to gain access to such Service Content via other mechanisms than those available via the Services. Such Service Content shall not be copied and/or made available outside the Services.
6. APPLICATION LICENSE
By “Application” we mean an application or other technical interface provided by METASOUL that is used to access the Services. Subject to the terms of this Agreement, METASOUL hereby grants you a personal, non-exclusive, non-transferable, limited and revocable license to download, run and use the Application for personal use on relevant devices owned or controlled by you. Such license also applies to updates and upgrades that replace or supplement the Services in any respect and which are not distributed with a separate license and related documentation. The Application is licensed, not sold, to you, and METASOUL retains ownership of all copies of the Application even after installation on your devices. METASOUL may transfer its rights and obligations, or sub-contract or sub-license its obligations, under this Agreement to another legal entity, provided your legal and consumer rights are not prejudiced. You may not may transfer your rights and obligations, or sub-contract or sub-license your obligations, under this Agreement to another legal entity.
7. THIRD PARTY APPLICATIONS
8. CONTENT RESTRICTIONS
The Services contains content, such as sound recordings, audiovisual works, other video or audio works, clips, images, graphics, text, software, works of authorship, files, documents, applications, artwork, trademarks, trade names, metadata, album titles, sound recording titles, artist names, intellectual property, or materials relating thereto or any other materials, and their selection, coordination and arrangement (collectively, the “Service Content”). The Service Content is the property of METASOUL and/or third parties and is protected by copyright under both United States and foreign laws. The Service Content is made available to you only for your personal use as expressly permitted under these Terms.
You are prohibited from using the Service Content as follows:
- Except as permitted under the Terms, all copying, distribution or other use of the Service Content is prohibited without the prior written consent of the Service Content rights holders.
- You have no right to engage in the commercial use, sale, resale, assignment, license, modification, making of copies or derivative versions, display, distribution or promotion of the Service Content provided that to the extent expressly permitted by METASOUL, you may make derivative versions of the Editable Content for use solely in connection with the Edit Functionality.
- You have no right to any use that requires a public performance license.
- The use or posting of the Service Content on any other website, application or otherwise, or sharing of the Service Content in a networked computer environment, for any purpose is expressly prohibited.
- You shall only use the Service Content on platforms which are at your disposal for your personal use as provided herein and pursuant to your Subscription terms, and which support the Services’ technical protection system. You shall not circumvent or try to circumvent the Services’ technical protection system.
- The Service Content is, with few exceptions such as content labeled “created by METASOUL,” automatically uploaded to the platform by third parties such as record labels or their distributors. METASOUL does not review the Service Content supplied by third parties. The fact that Service Content supplied by third parties is available on the platform therefore does not imply any endorsement or approval by METASOUL. You understand that METASOUL is not responsible for features or the specific content of any Service Content supplied by third parties.
- Unauthorized use of the Services may also constitute a violation of applicable laws or regulations. If METASOUL, in its sole discretion, thinks you have breached the Terms, or has reasonable grounds to believe that you are likely to breach these Terms, we may take any action we think is necessary to protect the Services and the Service Content. We may: (a) restrict, suspend, or terminate your right to use the Services; (b) remove your User Content (as defined below) from the Services; (c) investigate and take legal proceedings against you; or (d) disclose any information to law enforcement authorities we think is necessary or as required by law. These actions are not limited and we may take any other action we reasonably deem appropriate.
- We are the owner of the METASOUL trademark (the “Trademark”). Nothing in this Agreement or on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademark, without METASOUL’s prior written permission specific for each such use. Use of the Trademark as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by METASOUL in writing. All goodwill generated from the use of the Trademark inures to METASOUL’s benefit.
- Elements of the Services including Service Content are protected by copyright, trade dress, trademark, unfair competition, or other state, federal and foreign laws, and the Services may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Service Content may be retransmitted without METASOUL’s and/or the appropriate third party’s express written consent in each and every instance.
9. USER CONTENT
To the extent allowed by the Services, any musical works (sound recordings and underlying musical compositions), audiovisual works (including but not limited to premium music videos, clips and so called “behind the scenes” audiovisual content), other video or audio works, images, graphics, text, works of authorship, files, documents, applications, artwork, trademarks, trade names, metadata, album titles, sound recording titles, artist names, intellectual property, or materials relating thereto or any other materials that you submit to the Service (“User Content”) are generated, owned and controlled solely by you and/or your licensees. We do not claim any intellectual property ownership rights in any User Content. After directly sending (“submitting”) your User Content to the Services, you continue to retain any intellectual property ownership rights that you may have in your User Content, subject to the license below. By submitting any User Content on or through the Services, you hereby grant to METASOUL a license (with the unrestricted right to sublicense) to store, host, display, stream, transmit conditional downloads, exploit, promote, market, sell and transmit permanent downloads, use, modify, delete from, add to, publicly perform, publicly display, reproduce, create and use derivative works of, distribute and otherwise disseminate the User Content on or through the Services via any and all devices known or hereinafter devised.
(a) The license you grant to METASOUL is non-exclusive (meaning you are free to license User Content to anyone else), fully-paid and royalty-free (meaning that we are not required to pay you for the use on the Services of the User Content that you post), sublicensable (so that we are able to use our affiliates, subcontractors and other vendors such as internet content delivery networks and wireless carriers to provide the services related to the Services), perpetual (forever) and worldwide.
(b) You represent and promise to us that the User Content submitted by you on or through the Services: (i) is owned by you or you otherwise have the right to grant the license set forth herein; (ii) does not infringe the rights of any third party, including any intellectual property rights, rights of confidential information or rights in privacy; (iii) does not imply any affiliation, endorsement, approval or cooperation by METASOUL or any artist, band, label, entity or individual without express written consent from such individual or entity; and (iv) shall comply with all applicable laws and these Terms. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any User Content submitted by you on or through the Services.
(c) The Services perform technical functions necessary to offer the services on the Services, including but not limited to transcoding and/or reformatting User Content to allow its use throughout the Services.
(d) We may reject, refuse to post or delete any User Content for any or no reason, including User Content that in our sole judgment breaches this Agreement or which may be offensive, illegal or breach the rights of any third party, or harm or threaten the safety of any third party. We are under no obligation to you or any other person to oversee, monitor or moderate User Content. We may at our option, moderate and review User Content to ensure that it complies with these Terms. If we do opt to monitor the Services, we assume no responsibility or liability to you for any User Content available on the Services.
(e) The licenses granted in this section are granted separately with respect to each item of the User Content that you submit to the Services.
(f) You are solely responsible for the User Content that you submit to the Services. You must not upload, store, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within the User Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Services) may constitute an infringement of third party rights and is strictly prohibited. Any such infringements and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rights holder.
10. PROHIBITED CONTENT / ACTIVITY
You must not upload or share any User Content which, in METASOUL’s reasonable opinion:
- Is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- Harasses or advocates harassment of another person;
- Exploits people in a sexual or violent manner;
- Contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
- Solicits personal information;
- Constitutes information that poses or creates a privacy or security risk to any person;
- Constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- Constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
- Involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
- Contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
- Furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
- Solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
- Involves any form of user tracking, commercial activities and/or sales without prior written consent from METASOUL such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
- Breaches the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
You further agree not to undertake any of the following activities on the Services:
- Criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- Advertising to, or solicitation of, any user, without the written consent of METASOUL to buy or sell any products or services through the unauthorized or impermissible use of the Services;
- Circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the Services;
- Activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- Covering or obscuring the banner advertisements on any page on the Services via HTML/CSS or any other means;
- Any automated use of the system, such as, but not limited to, using scripts to submit information or send comments or messages;
- Interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
- Impersonating or attempting to impersonate another user, person or entity;
- Using the account, username, or password of another user at any time or disclosing your password to any third party or permitting any third party to access your account;
- Selling or otherwise transferring your account;
- Using any information obtained from the Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
- Accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Services on behalf of that person; or
- Using the Services in a manner inconsistent with any and all applicable laws and regulations.
You agree that any breach of the provisions of this Section 10 will be considered a serious breach of the Agreement.
We have provided our contact information and email links on the Services because we would like to hear from you. However, we do not want you to, and you should not, send METASOUL any documents or other materials that contain confidential or proprietary information. You grant METASOUL an unrestricted, irrevocable, royalty-free license to copy, distribute, and modify any such documents or other materials that you send METASOUL, and to use for any purpose any ideas, trade secrets, know-how or other confidential or proprietary information disclosed in those documents or other materials, and that all of the representations and promises you make pursuant to this Agreement with respect to User Content apply equally with respect to any other documents or materials that you send to METASOUL that do not constitute User Content.
12. NOTICE AND PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
We, at our sole discretion, may disable and/or terminate use of the Services by users who infringe the intellectual property rights of others. We also have a policy of responding to notices of alleged infringement that complies with the Digital Millennium Copyright Act (“DMCA”) which may include removing material, including Service Content and/or User Content, claimed to be the subject of infringing activity. If we remove material to comply with the DMCA (“Removed Content”), we will attempt to contact the provider of such Removed Content to enable them to make a counter notification pursuant to the DMCA. We will terminate the accounts of any users and/or block access to the Services by any users who repeatedly infringe the copyrights of others.
If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property or privacy rights have been otherwise breached, please provide METASOUL with a notice containing the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A detailed description of the copyrighted work or other intellectual property that you claim has been infringed;
- A detailed description of where the material that you claim is infringing is located on the website (providing URL(s) in the body of an email is the best way to help METASOUL locate content quickly);
- Your name, address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property right owner’s behalf; and
- Your signature.
Send your notice to METASOUL by email at team@MetaSoulmusic.com. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that any material is infringing your copyrights or other intellectual property or privacy rights.
The provider of Removed Content may make a counter notification pursuant to Sections 512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the Removed Content. To submit a counter notification, you must provide METASOUL with a written notice that includes each of the following items:
- a detailed identification of the material the METASOUL has removed;
- your name, address, telephone number, e-mail address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Atlanta, Georgia if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person;
- the statement: “I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”; and
- your signature.
The counter notification can be sent to METASOUL by email to team@MetaSoulmusic.com. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others.
If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item of content or other materials on the Services infringes upon your rights in such intellectually property, you must submit a notification to us in the same manner as provided above in respect of notice of alleged copyright infringement, including providing the same information in writing to the designated address set forth above.
DISCLAIMER: WE ARE NOT YOUR LEGAL ADVISORS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY, AND AS REQUIRED BY LAW.
Any questions, complaints or claims regarding the Services can be directed to: team.MetaSoulmusic.com
14. NOTICE TO CALIFORNIA RESIDENTS
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice which is hereby offered as a convenience to you:
The name and address of the provider of the Services is MetaSoul, LLC, METASOUL – Customer Support, 5829 Cambellton Rc SW, Ste 104-224, Atlanta GA 30331. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or by email to team@MetaSoulmusic.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
15. THE RIGHTS OF METASOUL
If you fail to make any applicable payment or materially breach any provision of the Agreement, and such breach is not caused by circumstances on the part of METASOUL, METASOUL may, taking the interest of the user in account, deny further access to the Services.
16. NO WARRANTY/ LIMITATION OF LIABILITY
The Services and the Service Content are provided on an “as is” and “as available” basis without any warranties of any kind. To the fullest extent permitted by applicable law, METASOUL disclaims all warranties, including, but not limited to, the warranty of title, merchantability, non-infringement of third parties rights, and fitness for particular purpose. METASOUL reserves the right to change functionality and content offered under the Services on an ongoing basis.
To the fullest extent permitted by applicable law, METASOUL makes no warranties or representations about the Services or Service Content, including but not limited to their accuracy, reliability, completeness, efficacy, or timeliness. METASOUL shall not be subject to liability for truth, accuracy, or completeness of any information conveyed to the user or for errors, mistakes or omissions therein or for any delays or interruptions of the data or information stream from whatever cause. You agree that your use the Services and the Service Content is at your own risk. It is your responsibility to evaluate the accuracy, completeness or usefulness of any opinion, advice or other Service Content available through the Services.
In no event shall METASOUL be liable for any damages whatsoever (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the access, use or inability to use the Services and the Service Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, even if we have been advised of the possibility of such damages. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability shall be limited to the greatest extent permitted by law. To the fullest extent permitted by law, the liability of METASOUL arising from any error or other circumstance that may give rise to liability in relation to the Services shall – except for instances of any physical harm, gross negligence and willful misconduct – be limited to the amount paid by you for access to the Services in the relevant month.
Technical problems such as temporary non-availability of individual parts of the Services or the short-term unavailability of the whole service itself must be expected and shall not constitute breach of this Agreement. METASOUL does not warrant that the Services will operate error-free or that the Services, its server, or the Service Content are free of computer viruses or similar contamination or destructive features. Updates to the Service may take place on a regular basis. METASOUL reserves the right to add or remove support for specific devices. If your access or use of the Services or the Service Content results in the need for servicing or replacing equipment or data, METASOUL shall not be responsible for those costs.
Some aspects of this Section may not apply in some jurisdictions if prohibited by applicable law. However, no provision in these Terms shall apply to any consumer in New Jersey if the provision limits redress for/under: (i) METASOUL’s tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (ii) the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (iii) the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages in the event of harm caused by actual malice, wanton and willful disregard, reckless indifference); (iv) the New Jersey Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (v) METASOUL’s failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the New Jersey Identity Theft Protection Act, N.J.S.A.56:8-161, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-3, et seq.). NEW JERSEY RESIDENTS: With respect to these Terms, the provision concerning the exclusion or limitation of certain damages is not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold METASOUL harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising from, relating to or resulting from (a) your breach or alleged breach of the Agreement; (b) your access to, use or misuse of the Service Content or the Services; (c) any breach of your representations and promises set forth herein, or (d) your violation of any law or the rights of a third party. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
We may terminate this Agreement and close your account, or suspend your access to the Services, at any time without notice and without responsibility or liability to you, in the event of your actual or suspected unauthorized use or misuse of the Services and/or Service Content, or breach of the Agreement. In that event, we will refund to you a pro-rata share of your Subscription charge to account for the period you will not be able to access the Services.
We may terminate this Agreement and close your account at any time on reasonable notice to you if we cease to provide the Services.
19. GOVERNING LAW; ARBITRATION OF DISPUTES
Any dispute or claim arising out of or relating in any way to one or more of the following: (1) the Agreement; (2) the Services or Service Content, including User Content; (3) your Subscription; or (4) any products or services sold or distributed by METASOUL or through METASOUL (collectively “Claims”), will be resolved by binding arbitration, rather than in court, except that you and METASOUL may assert Claims on an individual basis in small claims court if they qualify. You and METASOUL also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights unrelated to your use of the Services or Subscription.
This Arbitration Provision is intended to be given the broadest possible meaning under the law and shall be governed by the Federal Arbitration Act and applicable U.S. federal arbitration law.
(a) Prohibition of Class and Representative Actions and Non-Individualized Relief
Any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class, consolidated, or representative action or proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claims. Any relief awarded cannot affect other users of the Services.
(b) Arbitration Procedures
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, the arbitrator may award the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), except that the arbitrator cannot not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. The arbitrator must follow and enforce the Agreement.
The arbitrator, and not any court, shall have exclusive authority to resolve any Claim relating to the interpretation, applicability, enforceability or formation of this Arbitration Provision including, but not limited to any claim that all or any part of this Agreement is void or voidable. The arbitrator will decide any and all Claims—statutory, common law, or otherwise.
The arbitration will be conducted by a neutral arbitrator from the American Arbitration Association (“AAA”) in accordance with AAA’s rules and procedures, including the AAA’s Consumer Arbitration Rules available at https://www.adr.org/sites/default/files/document_repository/Consumer_Rules_Web_0.pdf. If there is any inconsistency between the AAA rules and this Arbitration Provision, the terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would result in a fundamentally unfair arbitration.
To commence arbitration, you must complete a short form, submit it to the AAA, and send a copy to us, Attn: METASOUL Legal Department, 5829 Cambellton Rd SW, Ste 104-224, Atlanta GA 30331. For more information, see the AAA’s claim filing page, https://www.adr.org/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in Atlanta, Georgia, or at another mutually agreed location.
(c) Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA Consumer Arbitration Rules. You and METASOUL will be individually responsible for all other costs and fees incurred in connection with the arbitration, including without limitation, all attorneys’ fees, unless recoverable under applicable law. However, in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees and costs associated with the arbitration, including our attorneys’ fees, and fees and costs paid by us on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
If the arbitrator decides that any term or provision of this Arbitration Provision other than Section 19(a) (Prohibition of Class and Representative Actions and Non-Individualized Relief) is invalid or unenforceable, you and METASOUL agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Provision shall be enforceable as so modified. If the arbitrator decides that any of the provisions of Section 19(a) is invalid or unenforceable, then the entirety of this Arbitration Provision shall be null and void. The remainder of the Agreement will continue to apply.
If for any reason Claims proceeds in court rather than in arbitration, you and METASOUL waive any right to a jury trial. In that instance, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of Georgia, County of Fulton.
(e) Future Changes to this Arbitration Provision
Notwithstanding any provision in this Agreement to the contrary, you and METASOUL agree that if we make any change to this Arbitration Provision (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against METASOUL prior to the effective date of the change. Moreover, if future version of this Agreement do not contain this or another Arbitration Provision, any existing Arbitration dispute will not be affected.
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and METASOUL or between METASOUL and any other user of the Services. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provision of the Agreement, which shall remain in full force and effect unless such deletion materially frustrates the intent of the parties, in which case this Agreement will terminate. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against METASOUL unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. This Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.