ToneDen Terms of Service
This Agreement was last modified on January 16, 2019.
Welcome to ToneDen! Please read these Terms of Service (the “Terms”) carefully because they govern your use of our website located at www.toneden.io (the “Site”) our online platform and related advertising services, including services which enable creators, businesses, and brands to easily reach and sell to their audiences across social media platforms. To make these Terms easier to read, the Site and our online platform are collectively called the “Services.”
We urge you to contact us directly if there are anything in our Terms of Service that may require further clarification. You can reach us anytime by sending us a message at firstname.lastname@example.org.
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your”will refer to that company or other legal entity.
ARBITRATION NOTICE: UNLESS YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION FOR CONSUMERS” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION FOR CONSUMERS” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND TONEDEN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
If you are 13 years or older and not barred from using the Services under applicable law, you may use the free features of the Services. In order to use the Services described in the “Paid Services” section below you must be 18 years or older, capable of forming a binding contract with ToneDen, and not barred from using the Services under applicable law.
If you want to use certain features of the Services you may need to register with Facebook to create a Facebook account (“Facebook Account”) and then register with us to create a ToneDen account (“Account”). If you choose to create an Account using your Facebook Account, we’ll extract from your Facebook Account, as applicable, certain personal information, such as your name, location information and other general information that your privacy settings on the applicable Facebook Account permit us to access.
After you create an Account and become a registered user of the Services (a “Registered User”), you may also connect your Account with your other third party accounts such as Twitter, YouTube, Spotify, etc. (each, a “Third Party Account”), and we’ll extract from your Third Party Account certain information that your privacy settings on the Third Party Account permit us to access. Consumer users of the Services, including End Users (defined below) may also use the Services without creating an Account and becoming a Registered User (“Consumers”).
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
Using the Services
End User Data. As used in these Terms, “End User” means a user or potential user of your products or services, and “End User Data” means the data about your End Users (including any End User personally identifiable information) that you input or submit to the Services directly or via providing us with access to your Third Party Accounts
In order to use the user targeting features of the Marketing Service, Messaging Service or Advertising Service, subject to compliance with applicable law, and terms and conditions governing use of your products and services, you will need to provide ToneDen with access to your End User Data either directly by delivering the End User Data to ToneDen or by giving ToneDen access to such data through your Third Party Accounts, such as MailChimp or Eventbrite. In order for us to retrieve your End User Data from your Third Party Account you agree to provide us with the requisite security permissions, software interfaces to your business applications on such Third Party Accounts and any other information requested by us. We are not responsible or liable for any Third Party Accounts or any products or services (including End User Data) accessed from such Third Party Accounts on your behalf. You will indemnify us from any liability arising from accessing any End User Data from any of your Third Party Accounts.
Marketing Pages. Through use of the Services, Registered Users may build marketing pages (each a “Page”) and embed, post and upload User Content.
General. As a Registered User, you can use the marketing platform features of the Services (“Marketing Service”) to generate landing pages containing your User Content (each a “Landing Page”) to engage your target audience and capture information via social networking services such as Facebook, Twitter, Spotify, etc. (each, an SNS).
Creating a Landing Page
- Our Marketing Service offers three types of Landing Pages that Registered Users can create. A Social Unlock Landing Page, a Contest Landing Page, and a FanLink Landing Page. Please refer to our feature pages for more information on each type of Landing Page here: https://www.toneden.io/features/growth.
- For each Landing Page, you will need to enter information regarding your product, offer, or content along with other selections within the Marketing Service to generate your Landing Page.
Messaging Services. Through the use of the Services, as a Registered User, you may be able to send marketing material and other messages containing your User Content (“Messaging Campaign”) via E-mail or direct messaging services provided by social networking services such as Facebook and Instagram to Consumers by using the messaging platform features of the Services (“Messaging Service”).
General. As a Registered User, you can use the marketing platform features of the Services (“Marketing Service”) to generate landing pages containing your User Content (each a “Landing Page”) to engage your target audience and capture information via social networking services such as Facebook, Twitter, Spotify, etc. (each, an SNS).
Creating a Messaging Campaign
- For each Messaging Campaign you will need to enter information regarding your Messaging Campaign (e.g., a product, information, offer; target audience identifiers) and make other selections within the Messaging Service to generate your Messaging Campaign.
- Once your Messaging Campaign is delivered or scheduled via the Messaging Service, you will not have the ability to change or modify the Messaging Campaign information or the Messaging Campaign.
- Delivery of the Messaging Campaign via the Services is not a guarantee that your Messaging Campaign will be delivered to the audience specified when creating the Messaging Campaign.
General. As a Registered User, you can use the advertising platform features of the Services (“Advertising Service”) to generate advertisements containing your User Content (each an “Ad Campaign”), identify the target audience for your Ad Campaign and potentially have the Ad Campaign served, on your behalf, on certain SNSs.
Creating a Ad Campaign
- For each Ad Campaign you will need to enter information regarding your Ad Campaign (e.g., a product or event description; target audience identifiers) and make other selections within the Advertising Service to generate your Ad Campaign.
- Once your Ad Campaign is submitted via the Advertising Service, you will be able to change a limited amount of information in relation to the Ad Campaign via the functionality of the Advertising Service. You will always have the ability to pause or delete an Ad Campaign that you have created via the Advertising Service.
- Submission of an Ad Campaign via the Services is not a guarantee that your Ad Campaign will be made available on a SNS. ToneDen does not warrant or guarantee that any Ad Campaigns will be accepted, will be made available, or will remain available on a SNS. ToneDen does not review or police the content of your User Content or Ad Campaigns, nor does ToneDen make editorial or managerial decisions related to your User Content or Ad Campaigns. In the event that your Ad Campaign is rejected by an SNS, you may resubmit your Ad Campaign using the automated submission process via the Advertising Service as many times as you wish at no additional charge.
- You will ensure that each Ad Campaign complies with these Terms, our advertising guidelines, and all applicable laws and regulations. If we determine, in our sole discretion, that a particular Ad Campaign is inappropriate or in violation of our guidelines, then upon our request, you will block or withdraw such Ad Campaign. We may, at our discretion, refuse to serve any Ad Campaign at any time. You acknowledge and agree that ToneDen is not responsible for any of your Ad Campaigns.
You are responsible for your use of the Marketing Service, Messaging Service and Advertising Service.
You may choose to make donations (“Donations”) to certain Registered Users who are creators or influencers, through the Services. You can do so by following the instructions provided on the Services. ALL DONATIONS ARE FINAL. YOU WILL NOT BE ABLE TO CANCEL A DONATION AND/OR RECEIVE A REFUND OF YOUR DONATION AT ANY TIME.
Subscriptions.You may be required to purchase an annual or monthly subscription (“Subscription”) in order to access certain features of the Services (the “Select Services”). If you elect to purchase an annual or monthly Subscription, you will be charged the annual or monthly Subscription fee (“Subscription Fee”) for all the Select Services you elect to purchase in accordance with your chosen Subscription(s) available at the Pricing Page https://www.toneden.io/pricing at the beginning of your Subscription and each year or month thereafter, respectively, at the then-current rate. If you elect to purchase an annual Subscription, we (or our third party payment processor) will automatically charge you on the anniversary of the commencement of your Subscription using the Payment Information (as defined below) you have provided. If you elect to purchase a monthly Subscription, we (or our third party payment processor) will automatically charge you each month, on the calendar day corresponding to the commencement of your Subscription, using the Payment Information you have provided. In the event your Subscription began on a day not contained in a given month, your payment method will be charged on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Subscription on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. By agreeing to these Terms and electing to purchase an annual or monthly Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or ToneDen. We may also periodically authorize your payment method in anticipation of applicable fees or related charges. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms.
Cancelling Subscription. You may cancel your Subscription at any time. PLEASE NOTE, HOWEVER, THAT ALL SALES ARE FINAL. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can either (i) email us at email@example.com and follow any instructions, if any, we provide to you in response to your cancellation request, or (ii) initiate a cancellation through your Account settings within the Services. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then current Subscription period. If you cancel, we will allow you to access the Select Services until the most recently paid-up Subscription period ends, and then will terminate your access to the Select Services. Cancelling your Subscription won’t cancel your Account. See the “Termination” section below for information on terminating your Account.
Payment. When you purchase a Subscription or make a Donation (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your billing address (such information, “Credit Card Information”). You may also pay for a Transaction through use of PayPal or any other payment service providers that we may opt to use by providing us with your account information for such service provider (“Payment Service Provider Information”). Your Credit Card Information and Payment Service Provider Information are collectively referred to as “Payment Information”. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
Free Trial. We may offer a paid Subscription on a free trial basis (“Free Trial”) for a specified period of time. If we offer you a Free Trial, the specific terms of your Free Trial will be provided at signup and/or in the promotional materials describing the Free Trial and your use of the Free Trial is subject to your compliance with such specific terms. Free Trials may not be combined with any other offer. Except as may otherwise be provided in the specific terms for the Free Trial offer, Free Trials are only available to users who have not previously subscribed to the Subscription in connection with which the Free Trial is being offered. When you agree to a Free Trial, you are also agreeing to sign up for a paid Subscription as described above and, consequently, unless you cancel your Subscription prior to the end of your Free Trial, we (or our third party payment processor) will begin charging your payment method on a recurring basis for the Subscription Fee (plus any applicable taxes and other charges) until you cancel your Subscription. Instructions for cancelling your Subscription are stated above in the “Cancelling Subscriptions” section. We reserve the right to modify or terminate Free Trials at any time, without notice and in our sole discretion.
Content and Data
“Content” means data, text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services. Content includes without limitation, User Content.
“ToneDen Service Data” means the statistical, analytical or other data developed or created by or for ToneDen, based upon the End User Data and other internal and external data collected by ToneDen. ToneDen Service Data will not include any personally identifiable information of any End User. By way of illustration, ToneDen Service Data includes without limitation, arrangements or organization of End User Data that is representative of a certain population, demographic representation of your and other Registered Users’ end users, and reports summarizing usage behavior of different end user groups.
"User Content" means any Content that Registered Users and Consumers provide to be made available through the Services, including the content of any Ad Campaigns.
Connecting with Registered Users on ToneDen Through use of our Services Consumers will be able to access and interact with Registered Users. Registered Users will be able to engage with Consumers privately through the use of the Services, as well as through external media such as email, social media, mobile devices, and any other methods if Consumers have interacted on the Registered User's page or have subscribed or followed that Registered User via Third Party Accounts or through interacting with User Content on the Services. ToneDen is not responsible for and accepts no liability in relation to Consumers’ private communication and sharing of information with any Registered User, including via media external to the Site and Services. Consumers should exercise discretion and good judgment when submitting or posting User Content, when interacting with Registered Users and others, and when giving away personal or other information to Registered Users and others.
Content Ownership and Responsibility. ToneDen does not claim any ownership rights in any User Content or End User Data (subject to ToneDen’s rights in the ToneDen Service Data) and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content or End User Data. Subject to the foregoing and with the exception of User Content and End User Data, ToneDen and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
ToneDen will exclusively own all rights, title and interest in and to the ToneDen Service Data, including all intellectual property rights therein and will use the ToneDen Service Data in any manner it sees fit. You will have no rights in or to, nor access or use of, the ToneDen Service Data, other than as required for your use of the Services as provided herein.
Removal. You can remove your User Content by specifically deleting it using the features of the Services. We will permanently delete all information, content, and end-user data associated with your account. However, in very few instances, some ToneDen Service Data may not be able to be removed. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content or End User Data. Please reach us at firstname.lastname@example.org for any clarification or requests associated with your data. You may also see our Privacy portal [https://www.toneden.io/privacy-portal] for more insight in the kind of data ToneDen stores and shares.
User Representation and Warranties
You are solely responsible for all your User Content and End User Data. You represent and warrant, that:
- you own all your User Content and End User Data or you have all rights that are necessary to grant us the license rights in your User Content and End User Data under these Terms, including any appropriate licenses from rights management organizations
- you have paid any required royalties or fees for the rights to use such User Content and to grant us the license rights in your User Content and End User Data under these Terms
- neither your User Content nor End User Data, nor your use and provision of such User Content or End User Data to be made available through the Services, nor any use of your User Content or End User Data by ToneDen on or through the Services will infringe, misappropriate or violate a third party’s rights, including intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law or regulation (including without limitation, applicable data and privacy laws)
- neither the End User Data, nor your use and transmission of End User Data to be made available through the Services, nor any use of the End User Data by ToneDen as contemplated by this Agreement will breach any agreement between you and any third party
- you have made all disclosures and secured all requisite consents required under the applicable laws from End Users and other individuals as applicable, in connection with the provision and transmission of End User Data to ToneDen, the collection of End User Data by ToneDen, and use of such End User Data by ToneDen as contemplated herein.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Registered Users’ Promotions and Promotional Emails
We may allow certain Registered Users (e.g. brands) to organize sweepstakes, contests, marketing campaigns and other promotions (“Promotions”) via the Services from time to time. We may also collect information from or about you as a result of your participation in an artist Promotion (“Promotion Data”) and share that Promotion Data with the artist running the specific Artist Promotion. Promotion Data includes information such as your name, email address, birthday, location, recent Tweets, and Spotify playlists. In addition, if you have interacted on an artist's page or have subscribed or followed that artist on your Third Party Account and we know this because you connected your Third Party Account with your Account or through interacting with the artist’s Content on the Services, and we have your email address, we will share your email address with such artist so that the artist can send you email notifications about the artist’s Promotions. Any artist’s Promotion is organized and run exclusively by the artist or on behalf of the artist by a third party, and we have no control over the manner in which a Promotion is organized, run or conducted. ACCORDINGLY, WE ARE NOT RESPONSIBLE FOR ANY LIABILITY THAT ARISES FROM YOUR PARTICIPATION IN ANY PROMOTION, DISCLOSURE OF YOUR EMAIL ADDRESS OR PROMOTION DATA TO ARTISTS OR USE OF SUCH DATA BY AN ARTIST. IF YOU PARTICIPATE IN A PROMOTION, YOU DO SO AT YOUR OWN RISK AND WE HAVE NO RESPONSIBILITY OR LIABILITY IN THIS REGARD. For more information regarding our collection, use and disclosure of email addresses and Promotion Data please see our Privacy Portal https://www.toneden.io/privacy-portal.
If you are an brand who is organizing a Promotion via ToneDen, you acknowledge and agree that you are solely responsible for running the Promotion, and for any and all liabilities that arise from such Promotion. You agree to do the following in connection with your Promotions:
- Provide the contestants and participants with the official rules (“Official Rules”) of the Promotion and adhere to such Official Rules in conducting the Promotion.
- Comply with all applicable rules, regulations and laws relating to such Promotions (including without limitation, those that apply to the CAN SPAM Act and rules and regulations governing sweepstakes, contests and other skill and chance based games).
- Indemnify ToneDen from any and all liability in connection with your Promotion.
Any suggested official rules you may receive from ToneDen are provided “as is,” for illustrative purposes only. ACCORDINGLY, IF YOU ORGANIZE A PROMOTION USING ANY SUGGESTED OFFICIAL RULES YOU RECEIVE FROM US, YOU DO SO AT YOUR OWN RISK AND WE ARE NOT RESPONSIBLE FOR ANY LIABILITY THAT ARISES FROM SUCH PROMOTION OR YOUR USE OF THE SUGGESTED OFFICIAL RULES. Ensuring that a Promotion and its Official Rules comply with all applicable rules, regulations and laws is your responsibility and we recommend that you have an attorney review any Official Rules before starting any Promotion.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) promotes illegal or harmful activities or substances; or (viii) promotes political campaigning;
- Use, display, mirror or frame the Services or any individual element within the Services, ToneDen’s name, any ToneDen trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ToneDen’s express written consent;
- Access, tamper with, or use non-public areas of the Services, ToneDen’s computer systems, or the technical delivery systems of ToneDen’s providers;
- Attempt to probe, scan or test the vulnerability of any ToneDen system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by ToneDen or any of ToneDen’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by ToneDen or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a ToneDen trademark, logo URL or product name without ToneDen’s express written consent;
- Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
ToneDen’s Enforcement Rights
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, including your User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
ToneDen respects copyright law and expects its users to do the same. It is ToneDen’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see ToneDen’s Copyright and IP Policy at https://www.toneden.io/copyright, for further information.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
THE SERVICES AND CONTENT ARE PROVIDED BY TONEDEN “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES OR THE RESULTS OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY AS TO THE USEFULNESS OR THE CAPABILITY OF THE SERVICES TO MARKET AND PROMOTE YOU OR ANY OTHER PERSON OR ANY MUSIC. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.
You will indemnify and hold harmless ToneDen and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content (including Artist Content, if applicable), (iii) your violation of these Terms, or (iv) your Promotions (if you are an Artist conducting a Promotion).
Limitation of Liability
TONEDEN WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR CONTENT, OR FROM ANY COMMUNICATION, INTERACTION OR MEETING WITH OTHER ACCOUNT HOLDERS, VISITORS OF THE SERVICES, OR THIRD PARTIES YOU COMMUNICATE AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TONEDEN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL TONEDEN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TONEDEN AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Dispute Resolution for Commercial Entities
If you are accessing and using the Services on behalf of a company or other legal entity, you and ToneDen agree that the exclusive jurisdiction and venue of any legal action or proceeding arising under these Terms will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Dispute Resolution for Consumers
Agreement to Arbitrate
You and ToneDen agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide ToneDen with written notice of your desire to do so by email or regular mail at 1455 N. Gower Street, Box #20, Los Angeles CA 90028 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide ToneDen with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide ToneDen with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide ToneDen with an Arbitration Opt-out Notice, you acknowledge and agree that you and ToneDen are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and ToneDen otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and ToneDen otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and ToneDen submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. ToneDen will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, ToneDen will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if ToneDen changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of ToneDen’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and ToneDen in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between ToneDen and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ToneDen and you regarding the Services and Content.
If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Dispute Resolution for Consumers” section above or by court of competent jurisdiction, if you are accessing and using the Services on behalf of a company or other legal entity or if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without ToneDen’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. ToneDen may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by ToneDen under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
ToneDen’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ToneDen. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact ToneDen at email@example.com