S!NG Market Terms & Conditions
Last Updated: September 30, 2021
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE S!NG MARKET. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms and Conditions (“Terms”) govern access to and use of the S!NG Market web site (the “Site”), mobile app (“Mobile App”) and services (the “Services”) by S!NG Market Users (“Users”). S!NG Market is owned by S!NG Inc. (“S!NG,” “we” or “us”).
The S!NG Market allows Users like you to create an account through which you may purchase S!NG non-fungible tokens (“Tokens”). When you purchase a Token, you obtain the ability to listen to and view the audio/visual artwork (a “Work”) by an artist (“Artist”) who has offered a Work through the S!NG Market (details described fully below). When you sign up for an account, S!NG will create a wallet (“Wallet”) for your account to which you may transfer your virtual currency in order to purchase Tokens and in which you may hold any Tokens and Works that you hold. Please review these Terms carefully before enjoying the S!NG Market experience.
1. UPDATES AND COMMUNICATIONS
1.1 We may revise these Terms or any additional terms and conditions from time to time to reflect changes in the law or to the S!NG Services. We will post the revised terms on the Site with a “last updated” date. IF YOU CONTINUE TO USE THE S!NG SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
1.2 You agree to receive all communications, agreements, and notices that we provide in connection with any S!NG Services (“Communications”), including, but not limited to, Communications related to our delivery of the S!NG Services, via electronic means, including by e-mail, text, in-app notifications, or by posting them on the Site or through any S!NG Services. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.
2. USAGE AND ACCESS RIGHTS
2.1 Minimum Age. By accessing, using and/or submitting information to or through the S!NG Services, you represent that you are at least age 18.
2.2 Account Registration. You will need to create and register an account in order to use the S!NG Services. In creating an account, you agree to:
(i) Create only one account;
(ii) Provide honest, accurate, truthful, current and complete information;
(iii) Keep your information updated and accurate;
(iv) Maintain the security of your account by not sharing your password with others and restricting access to your account and your computer;
(v) Promptly notify us if you discover or suspect that your account has been hacked or its security breached; and
(vi) Take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
2.3 Purchase. You acknowledge and agree that your purchase of any Tokens may be subject to your successful completion of additional screening requirements. You also acknowledge and agree that we may ask you for your name, address, date of birth and other identifying information. If you fail these screening requirements and/or fail to provide responses to our requests within the stated amount of time, we reserve the right to prohibit your purchase.
2.4 Obligation to Fulfill Bids and Purchases. You agree that you are able and willing to make payment in full for any and all bids or proposed purchases made on the S!NG site. If you fail to make timely payments, we reserve the right to prohibit your purchase(s) and any future purchases.
2.5 Equipment. You are responsible for providing the equipment and services that you need to access and use the S!NG Services. We do not guarantee that the S!NG Services are accessible on any particular equipment or device or with any particular software or service plan.
3. PROVISION OF S!NG SERVICES
3.1 Changes. We are constantly improving the S!NG Services to provide the best possible experience for you and other users. You acknowledge and agree that the S!NG Services, or certain features of the S!NG Services, may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current S!NG Services is subject to these Terms.
3.2 Mobile Terms. If you use a mobile device to access the S!NG Services, the following additional terms and conditions (“Mobile Terms”) also apply.
(i) Regarding the Mobile App, these Terms are supplemented by and incorporate (a) the Apple, Inc. (“Apple”) Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); and (b) the relevant terms of the Google Inc. (“Google”) Google Play Developer Distribution Agreement (together, the Apple and Google terms are the “Supplemented Terms”). You must agree to these Supplemented Terms as well as these Terms before using the S!NG Mobile App. In the event of an irreconcilable inconsistency between any Supplemented Terms and these Terms, these Terms will prevail.
(ii) In addition, the Mobile App may make special offers available from time to time (“App Offers”). App Offers may be based on your particular location or usage history using the S!NG website or Mobile App. App Offers also may be subject to additional terms and conditions as described in the App Offer. These App Offers are an integrated feature of the Mobile App. If you do not wish to receive App Offers, you will need to delete the Mobile App from your mobile device(s).
(iii) By downloading and using the Mobile App you acknowledge and agree that you accept the Supplemented Terms, and that S!NG is solely responsible for the Mobile App and the content thereof, and not Apple or Google.
(iv) You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the S!NG Services. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details.
(v) You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your service provider or otherwise.
(vi) Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use.
(vii) If you opt in to participate in one of our text message programs, you provide your advance consent to receive text messages from an automated system. Your consent was not and is not required as a condition of purchasing any property, goods, or services from us. If you wish to withdraw your consent and unsubscribe, please text STOP to the appropriate short code.
(viii) Message frequency depends on the program.
(ix) YOUR ACCESS TO AND USE OF THE S!NG SERVICES VIA YOUR MOBILE DEVICE CONFIRMS YOUR AGREEMENT TO THE MOBILE TERMS, AS WELL AS THE REST OF THESE TERMS.
3.3 Update Program. When you become a User, you will be automatically enrolled in the S!NG Update Program (“Update Program”) to receive emails, SMS text messages, direct mail and other communications (“Communications”) with information about your Account, the latest news about S!NG, special offers, and coupons. When creating an Account, you may choose not to receive certain Communications (see Opting Out of Communications, below) but your email address and other contact information may be retained indefinitely in our Update Program database for administrative purposes, even if you terminate your Account. If you choose not to receive Communications, you may not receive Update Program benefits, such as special offers or coupons that S!NG may make available to Users from time to time, and which may be subject to specific terms, restrictions and conditions, but you will always receive information related to your Account and “transactional or relationship communications” as defined in our Privacy Policy. Creating an Account does not guarantee receipt of any Communications or the availability to you of any coupons, special or promotional offers. The Update Program or any component of it is subject to change or termination without notice. Continued participation in the Update Program constitutes acceptance of its then-current terms and conditions.
3.4 Your Responsibilities. Users are responsible for updating their Accounts. We are not responsible for any Communications sent to an incorrect or incomplete address or number, or for any lost, late, misdirected, damaged, postage-due or illegible mailings or other Communications. We reserve the right to correct and not honor errors made in our Communications with you.
3.5 Opting Out of Update Communications. To opt-out of S!NG Update communications, except “transactional or relationship” communications as defined in our Privacy Policy, you may click on the unsubscribe link at the bottom of any S!NG email or update your S!NG account if you have one. To opt-out of SMS text messages from S!NG, you can update your S!NG account if you have one OR text STOP to the appropriate short code from the mobile device where you received the SMS text message. If you wish to stop receiving “transactional or relationship” Electronic Communications, you must delete your S!NG user account.
4. OWNERSHIP
4.1 Intellectual Property. You acknowledge and agree that, as between you and Artist, Artist owns all legal right, title and interest in and to the Work and all intellectual property rights therein, including moral rights, except as otherwise described in this Supplement or separately agreed to between you and Artist. Artist reserves all rights in and to the Art not expressly granted to you in the license in Section 4 below. Subject to the Artist’s rights in the Work, you own all rights to any Token you have purchased.
4.2 Limited License. Subject to your continued compliance with the terms of these Terms, Artist grants you a worldwide, non-exclusive, non-transferable (except as specifically permitted herein), royalty-free license to use, copy, and display the Work associated with any Token you have purchased, solely for your own personal, non-commercial use.
4.3 The Site itself is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Site. Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Site, shall, as between you and S!NG, at all times be and remain the sole and exclusive property of S!NG.
4.4 The trademarks, logos, taglines, and service marks displayed on the Site (collectively, the “Trademarks”) are registered and unregistered Trademarks of S!NG and others. The Trademarks may not generally be used in any advertising or publicity, or otherwise to indicate S!NG’s sponsorship of or affiliation with any product, service, event, or organization without S!NG’s prior express written permission.
5. RESTRICTIONS ON USE OF THE SITE
5.1 Use of Works. You agree that you may not, nor permit any third party to do or attempt to do, any of the foregoing without Artist’s express prior written consent in each case:
(i) create derivative works from or modify the Work associated with the Token in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes of such Work;
(ii) use the Work associated with the Token to advertise, market, or sell any third-party product or service;
(iii) use the Work associated with the Token in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
(iv) use the Work associated with the Token in movies, videos, or any other forms of media;
(v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Work associated with the Token;
(vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights, including moral rights, in or to the Work associated with the Token; or
(vii) otherwise utilize the Work associated with the Token for your or any third-party’s commercial benefit.
5.2 Use of the Site. By using the Site, including any S!NG Service, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
(i) Is illegal, or violates any federal, state, or local law or regulation or enable others to do so;
(ii) Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
(iii) Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
(iv) Creates potential liability for, or may have an adverse impact on S!NG (for example, if a Token has an adverse economic, reputational or security-related impact);
(v) Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
(vi) Violates terms of distribution agreements with device manufacturers; or
(vii) Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site.
5.3 Monitoring. You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
6. S!NG WALLETS
6.1. Wallet Services. As part of your account, we will provide you access to a hosted Wallet for holding virtual currency.
6.2. Hosted Wallet. Your Wallet allows you to store, track, transfer, and manage your balances of virtual currency. You are responsible for securely storing private keys, which are used to process transactions, associated with your virtual currency. S!NG is responsible solely for providing hosting services for your Wallet.
6.3 Ownership. Title to virtual currency shall at all times remain with you and shall not transfer to S!NG. The App does not store, send, or receive Moments. This is because Moments exist only by virtue of the ownership record maintained on the App’s supporting blockchain in the S!NG Network. Any transfer of Moments occurs within the supporting blockchain in the S!NG Network, and not on the App. As the owner of virtual currency in your Wallet, you shall bear all risk of loss of such virtual currency. We shall have no liability for virtual currency price fluctuations.
6.4 Control. You control the virtual currency held in your Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your virtual currency by sending it to a different blockchain address.
6.5. Taxes. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through S!NG, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
6.6. Identity Verification. In order to establish your account and Wallet, you agree to provide us with the information we request for the purposes of verifying your identity and detecting money laundering, terrorist financing, fraud, or any other financial crimes and permit us to keep a record of such information. Such information may include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, taxpayer identification number, a government identification, and information regarding your bank account (such as the name of the bank, the account type, routing number, and account number). You agree to keep us updated if any of the information you provide changes. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime.
6.7. Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the S!NG ecosystem, and therefore the potential utility or value of your Tokens.
7. PRIVACY
7.1 Privacy Policy. The privacy and security of your information is important to S!NG. Our Privacy Policy is incorporated into these Terms and also governs your use of the S!NG Services. To the extent there is a conflict between the terms of the Privacy Policy and these Terms, these Terms govern. The Privacy Policy describes the data that we gather about or from users of the S!NG Services and how we process, use and share that data. By using the S!NG Services, you consent to all actions that we take with respect to your data consistent with our Privacy Policy.
7.2 Ownership. Nothing in these Terms grants S!NG any right, title or interest in or to any of the User’s Confidential Information.
8. TERMINATION
S!NG may suspend any use of the S!NG Services, remove any content or disable or terminate any Account or Authorized User that S!NG reasonably and in good faith believes violates these Terms.
9. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) POLICY
9.1 Statement. This DMCA statement constitutes part of the legal terms and conditions governing all users of the S!NG Services. In compliance with the DMCA (Title 17, United States Code), S!NG will respond to proper notifications of claimed copyright infringement, and will take appropriate action including removing and disabling access to the allegedly infringing material. S!NG also reserves the right to remove and disable access to any material which, in S!NG’ sole judgment, may be infringing or violating another’s intellectual property right, whether or not S!NG has been notified by the rights holder.
9.2 Repeat Infringers. In accordance with the DMCA and other applicable law, S!NG has adopted a policy of terminating, in appropriate circumstances, Accounts that are determined by S!NG to be repeat infringers. S!NG may also, in its sole discretion, suspend and/or terminate an Account that infringes another’s intellectual property right, whether or not there is repeat infringement.
9.3 Designated Agent. In compliance with the DMCA, the Designated Agent for S!NG to receive notifications of claimed infringement relating to any of the S!NG Services is registered at https://www.copyright.gov/dmca-directory/.
Name: James N. Harmon By mail: 13254 42nd Avenue NE, Seattle, WA 98125 U.S.A. By telephone: +1 206 222 3307
9.4 Notice of Claimed Copyright Infringement. If you believe that your copyright has been infringed or violated by any material posted on any of the S!NG Services, please notify our Designated Agent listed above in writing and provide the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
9.5 Counter-Notifications. Under the DMCA, if a notice of copyright infringement has been filed against material on any of the S!NG Services, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following:
(i) Your physical or electronic signature;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
(iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which you are located (or in the State of New York, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
(v) If S!NG receives a valid counter-notification, it may reinstate the removed or disabled material in accordance with the DMCA.
9.6 Liability for Misrepresentation under the DMCA. Please note that, pursuant to the DMCA, any person who knowingly materially misrepresents that any material or activity is infringing, or that any material or activity was removed or disabled by mistake or misidentification, will be liable for damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by an online 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. Accordingly, if you are not sure whether certain material or activity infringes your or another’s copyright, please consult with a qualified attorney.
10. WARRANTIES AND DISCLAIMERS
THE S!NG SERVICES, SITE, AND MOBILE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE S!NG SERVICES, DOCUMENTATION, AND SITE SHALL BE AT YOUR SOLE RISK. S!NG AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“S!NG PARTIES”): (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE S!NG SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE S!NG SERVICES, SITE, OR MOBILE APP.
THE S!NG PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT S!NG SERVICES, SITE, OR MOBILE APP HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE S!NG SERVICES, SITE, OR MOBILE APP CONTENT AND ASSUMES NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF S!NG SERVICES, SITE, OR MOBILE APP; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA S!NG SERVICES, SITE, OR MOBILE APP. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF S!NG TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
S!NG DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, AND S!NG WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
11. INDEMNIFICATION OBLIGATIONS
You will defend, indemnify, and hold us, our Affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Site; (b) violation of these Terms by you or Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all User Data processed by the S!NG Services; or (e) any products or services purchased or obtained by you in connection with the Site.
12. LIMITATIONS OF LIABILITY
12.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, S!NG WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL S!NG BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (a) USE OF THE S!NG SERVICES, SITE, OR MOBILE APP; (b) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (c) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE S!NG SERVICES, SITE, OR MOBILE APP; (d) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (e) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS; (f) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE, DOCUMENTATION, OR S!NG SERVICES BY ANY THIRD PARTY; (g) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE, DOCUMENTATION, OR S!NG SERVICES; (h) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE S!NG SERVICES, SITE, OR MOBILE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE S!NG PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (i) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS OR OUR PRIVACY POLICY.
12.2 Cap on Damages. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SERVICES, SITE OR MOBILE APP (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO S!NG FOR THE S!NG SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
13. GENERAL
13.1 Relationship. At all times, you and S!NG are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties.
13.2 Trade Restrictions. You acknowledge that the Site, Mobile App, and/or S!NG Services and any related products, information, documentation, Software, technology, technical data, and any derivatives thereof, that S!NG makes available (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories (“Trade Restrictions”). You represent and warrant that: (a) you are not (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009.
13.3 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the S!NG Services will be effective only if it is in writing and sent using: (a) S!NG Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth on the Site for S!NG. User or S!NG may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon receipt if delivered using S!NG Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
13.4 Force Majeure. Except for any payment obligations, neither you nor S!NG will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, public health emergency, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
13.5 Mandatory Arbitration, Waiver of Class Actions Applicable to Users.
YOU AND S!NG AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and S!NG and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this section, “S!NG”) arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration administered by the American Arbitration Association (AAA) as follows:
Prior to initiating any arbitration, the initiating party will give the other party at least 60-days’ advanced written notice of its intent to file for arbitration. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration.
The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives, and the arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. S!NG and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither S!NG nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney general action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this section, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16.
13.6 Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules to the contrary. User and S!NG submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in King County, Washington, U.S.A.
13.7 Waiver. No delay or failure on the part of S!NG to enforce any part of these Terms will constitute a waiver of any of S!NG’s rights under these Terms whether for past or future actions on the part of any person. Neither the receipt of any funds by S!NG nor the reliance of any person on S!NG’s actions will be deemed to constitute a waiver of any part of these Terms. Only a specific, written waiver signed by an authorized representative of S!NG will have any legal effect whatsoever.
The waiver by either you or S!NG of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
13.8 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
13.9 Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms or the S!NG Services by any authority.
13.10 Notice to California Residents. Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
(i) The provider of the S!NG Services is S!NG Inc., 13254 42nd Avenue NE, Seattle, WA 98125 U.S.A..
(ii) To file a complaint regarding the S!NG Services or to receive further information regarding use of the S!NG Services, send a letter to the above address or contact S!NG via the Contact form on the S!NG website (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
13.11 General Provisions. The headings and captions contained herein are for convenience only. These Terms will inure to the benefit of and will be binding upon each party’s valid successors and assigns.
