Effective Date: Feb 11, 2021
Last Updated: April 6, 2021
BY ACCESSING OR USING THE SERVICE (DEFINED BELOW), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND COMPANY’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY COMPANY AND YOU TO BE BOUND BY THESE TERMS.
AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, TO THE FULLEST EXTENT PERMITTED UNDER LAW. Please review Section 18 for the details regarding your agreement to arbitrate any disputes with Company.
a. Revisions to Terms. We reserve the right to change these Terms on a going-forward basis at any time, effective as of posting. Please check these Terms periodically for changes. However, if a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
b. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service; and (iii) your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
a. The “Service” means the website located at www.OmenAgency.com and any associated software, applications (including mobile applications) (each, an “App”), and Internet services under our control, whether partial or otherwise, used in connection with the services we provide. The Service streamlines the process of creating, saving, and sharing original music by introducing collaboration and version-control techniques to the powerful digital audio workstations currently used by musicians. The Service offers an online platform designed to provide you with resources to enhance music creation and collaboration.
b. Third-Party Services. The Service may link to websites owned by third parties (“Third Party Sites”). If you use these links, then you will leave the Service. Some Third Party Sites may use Materials (defined below) under a license from us. We are not responsible for these Third Party Sites, whether or not we are affiliated with such Third Party Sites. Through our use, we do not endorse the organizations sponsoring such Third Party Sites or their products or services. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a Third Party Site or as a result of the presence of any third-party advertising on the Service.
a. Each user of the Service is a “User.” Certain parts of the Service require you to create an account by providing a valid email address, username, password and other information as prompted by the registration form. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. For example, you may not register using the name of a musical artist (e.g., Tiesto) unless you have the rights to such name. You represent and warrant that the information you provide to us upon registration and at all other times will be accurate and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service at our sole discretion, and without any liability to you. We also reserve the right to create verified User accounts and to require additional information from you in order to provide you with a verified User account.
b. Your Log-In Credentials. You are responsible for maintaining the confidentiality of your login credentials and are fully responsible for all activities that occur through the use of your credentials. You must notify us immediately at email@example.com if you believe the confidentiality of your login credentials has been compromised or if you suspect unauthorized use of your account. We will not be liable for any loss or damage arising from unauthorized use of your credentials.
c. You represent and warrant that if you create an account and use the Service on behalf of a business entity (e.g., a corporation), then you have the authority to bind the business entity in legal agreements and contracts and, by using the Service, bind such business entity to these Terms.
By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, customer service, and other administrative issues relating to your use of the Service. If we learn of a security system’s breach, then we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
(i) “CC-BY-NC-SA” means the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.
(ii) “Collaboration License” is a license that Creators of Tracks grant to their Collaborators. Under the Collaboration License, the Creator hereby grants each Collaborator an irrevocable, royalty-free license to Omen the Creator’s Track solely within the Creator’s project workspace for that Track.
(iii) “Collaborator” means a User who is invited to Omen a Track by that Track’s Creator.
(iv) “Creator” means a User who Posts a Track that has not been Omeninzed to the Service or a User that is deemed a Creator as described in Sections 5.h(i)(2)and 5.h(ii).
(v) “Post” and “Posting” mean submitting, uploading, publishing, displaying, or similar action on the Service.
(vi) “Private” is a Omen Setting for a Track that is only available to the Creator and Collaborators.
(vii) “Private Remix License” is a license that Creators of Public Tracks grant to Users who use the Creator’s Public Track as a new Private Track. Under the Private Remix License, the Creator hereby grants each User who uses the Creator’s Public Track as a new Private Track a royalty-free license to use the Creator’s Public Track solely as a new Private Track. For the avoidance of doubt, the Private Remix License only applies to Private Tracks that are used from Public Tracks and does not apply if such a Private Track is made Public.
(i) “PRO” means a musical works performing rights organization (e.g., ASCAP, BMI, and SESAC).
(ii) “Public” is a Omen Setting for a Track that permits any User to “Omenize” that Track.
(iii) “Omenized” means to access, download, use, perform, transmit, display, reproduce, modify, adapt, prepare derivative works of, synchronize, and combine a Track with any other material, in whole or in part, and in any media formats, now known or hereafter created.
(iv) “Omen Setting” is a setting you apply to a Track that dictates who may Omenize such Track. Private and Public are Omen Settings.
(v) “Omenized Tracks” means Tracks that have been used.
(vi) “Track” means any User Content you Post that is a musical work or sound recording, including any embodiment of a musical work or sound recording, such as an Ableton Live session file.
(vii) “Use” means to reproduce, distribute, publicly display, transmit, synchronize, communicate to the public, make available, publicly perform (including by means of digital audio transmissions) on a through-to-the audience basis, create derivative works from, transmit to Third Party Sites, and otherwise use and exploit.
(viii) “User Content” means any material that you Post to the Service, including, without limitation, musical works, sound recordings (including Tracks and Omenized Tracks), literary works, photographs, audiovisual works, artwork and Other Content (as defined in Section 5.c).
b. We Claim No Ownership. You or a third-party licensor, as appropriate, retain all intellectual property rights to the User Content you Post to the Service. This also means that you are responsible for protecting any of your rights in your User Content (including any User who violates the license you grant to such other User pursuant to Section 5.h (e.g., a User who Uses a Omenized Track for commercial purposes), and we need not enforce a violation of these Terms by another User as it pertains to your User Content, although we reserve the right to terminate the rights of such Users to use the Service.
c. User Content Generally. Posting User Content is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. If you find objectionable content in any User Content, then please notify us by sending an email to email@example.com. You are solely responsible for the content of any User Content. We may provide areas for Users to comment and Post artwork and other materials that are not Tracks (all User Content that is not a Track is “Other Content”). Other Content is subject to the license grant and restrictions in this Section (excluding those provisions applicable only to Tracks). The opinions expressed in any Other Content are to be attributed solely to the person or entity that Posted such content.
d. License Grant From You to Us. Subject to your Omen Settings, you grant us an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to Use all User Content you Post to the Service, through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting the Company and the Service; (ii) sharing information about your User Content with third parties and Third Party Sites, including Users; and (iii) Using your User Content on and through the Service as authorized in these Terms, including, but not limited to, for the purpose of Omenizing. You also grant us a royalty-free license to Use your name, image, voice, and likeness as made available by you or on your behalf through the Service in conjunction with advertising, marketing, or promoting you, your User Content, the Company, or the Service. For clarity, the rights granted in the preceding sentences of this Section 5.d include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO, a sound recording rights organization (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content. However, if your User Content is a Track, then we will exercise our rights under this Section 5.d in a manner consistent with the Omen Setting you have chosen for such Track. For example, if you’ve indicated that a Track is Private, then we will exercise the rights to such Track under this Section 5.d in a manner consistent with your intent to keep it private (e.g., not use such Track to advertise, market, and promote the Company and the Service for so long as the Track is set to Private).
e. You Must Have Rights to the Content You Post. Do not Post any User Content to the Service if you are not the copyright owner of, or are not fully authorized to grant rights in, all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you cannot Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to sublicense us pursuant to these Terms. For example, the use of clips of third party sound recordings are not permitted on the Service unless you have cleared all rights to the sampled sound recordings. You represent and warrant that: (i) any User Content you Post to the Service is truthful, accurate, not misleading, and offered in good faith, (ii) you own the User Content you Post on or through the Service or otherwise have the right to grant the license set forth in these Terms; (iii) the Posting and use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iv) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (v) the posting of your User Content on the Service does not result in a breach of contract between you and a third party. You must pay all amounts owed to any person as a result of Posting your User Content on the Service, including any subsequent Posting to the Service by any Users who have Omenized your User Content. You agree that, subject to your Omen Settings, your User Content is non-confidential and non-proprietary, except as otherwise agreed upon between you and us.
f. Specific Rules for Musical Works. If you are a composer or author of a musical work and have affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms.
g. Through-To-The-Audience Rights. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of Third Party Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such Third Party Sites via the Service.
h. Licenses Between Users.
i. Public Tracks. If you Post or Omenize a Public Track, you are subject to the following terms with respect to such Public Track.
(1) If you are the Creator of a Public Track, you grant each User who Omenizes your Public Track and creates a new Track within such User’s workspace: (A) while the Omen Setting for that Omenized Track is Private, a Private Remix License; and (B) while the Omen Setting for that Omenized Track is Public, a worldwide, non-exclusive, royalty-free, perpetual (for the duration of the copyright in the Track), and transferable license to Use such Public Track under the terms of the CC-BY-NC-SA.
(2) If you are a Collaborator on a Public Track, the Creator grants you a Collaboration License and you hereby grant the Creator an irrevocable, perpetual, royalty-free license to Use any of your User Content incorporated into the original Public Track. You may also Omenize such Public Track in your own workspace. In that case, if you make your Omenized Track Public (subject to the Creator’s prior authorization), then the licenses in Section 5.h(i)(1) will apply as if you are the Creator.
ii. Private Tracks. If you are a Collaborator on a Private Track, then the Creator grants you a Collaboration License and you hereby grant the Creator an irrevocable, perpetual, royalty-free license to Use any of your User Content incorporated into the original Private Track. If – and only if – you obtain the Creator’s permission, you may Omenize such Private Track in your own workspace. In that case, if you make your Omenized Track Public (subject to the Creator’s prior authorization), then the licenses in Section 5.h(i)(1) will apply as if you are the Creator.
i. Waiver of Rights. Subject to your Omen Settings, by Posting User Content (including Omenized Tracks) to the Service, you waive any rights to prior inspection or approval of any Omenized Tracks or other materials related to such User Content. You further waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content or to any Omenized Tracks incorporating your User Content, or any portion thereof. If any moral rights are not transferable or assignable, then you waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to the Service or to any Omenized Tracks incorporating your User Content, during the term of these Terms. You waive any rights you may have regarding your User Content being altered or manipulated in any way that may be objectionable to you, but please let us know if you object to any such uses and where appropriate in our sole discretion, we will attempt to address your concerns. We may refuse to Post or maintain on the Service any User Content in our sole discretion.
a. The Service is owned and operated by the Company. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by the Company are protected by intellectual property and other laws. All Materials included in the Service are the property of Company or its third party licensors. Except as expressly authorized by the Company, you may not use the Materials. Company reserves all rights to the Materials not granted expressly in these Terms.
d. Trademarks. Omen Agency (hereinafter “Omen”), the Omen logo, and other Company logos and product and service names are or may be our trademarks (the “Company Marks”). Without our prior written permission, and except as solely enabled by any link we provide, you may not display or use in any manner the Company Marks. Rhodes is a trademark of Joseph A. Brandstetter, registered in the United States and other jurisdictions.
You may create a personal page (your “Profile”) on the Service on which you showcase your Tracks, in accordance with your Omen Settings. The Tracks you Post to your Profile will be subject to the license grants and other covenants, representations, and warranties set forth in these Terms. Profiles are public by default, but your Tracks are not (except for Omenized Tracks of Public Tracks). You are responsible for choosing an Omen Setting for each Track. If you do not choose an Omen Setting, then we will default to “Private” for your Track.
a. We respect the intellectual property of others and take the protection of intellectual property seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service. Our intellectual property policy is to (i) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content posted to the Service by “repeat infringers.” We consider a “repeat infringer” to be any User that has uploaded User Content to the Service and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
b. The DMCA provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the Service infringe your intellectual property rights, then you (or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
(ii) Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
(iii) Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
(iv) Your name, address, telephone number, and email address (if available);
(v) A statement that you have 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.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice.
c. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent to:
The Omen Agency LLC.
1984 Howell Mill NW
P.O. Box 20051
Atlanta, Georgia 30325
d. Counter Notification. If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in Section 10.c, and include substantially the following information
(i) A physical or electronic signature of the subscriber;
(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 under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.b above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
e. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [our] 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.
17 U.S.C. § 512(f).
We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. The foregoing is not intended to provide you with legal advice.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you grant Company an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
a. We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
b. You are solely responsible for your User Content on the Service. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation. Additionally, you are solely responsible for maintaining backup copies of any User Content you upload to the Service. We are not responsible for the deletion or unavailability of any User Content.
c. You may use the Service only for its intended purpose. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. In using the Service, you may not:
(i) interfere with security-related features of the Service, including by: (A) disabling or circumventing features that prevent or limit use or copying of any content; or (B) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
(ii) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (A) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (B) making any unsolicited offer or advertisement to another user of the Service; (C) collecting personal information about another user or third party without consent; or (D) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
(iii) perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation
(iv) disclose personal information about another person or harass, abuse, or Post objectionable, pornographic, harmful, offensive, or obscene material;
(v) sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
(vi) use the Service in an illegal way or in violation of any applicable law or that otherwise results in fines, penalties, and other liability to us or others;
(vii) violate, or encourage others to violate, any right of a third party (including by infringing or misappropriating any third party intellectual property right); or
(viii) assist or permit any persons in engaging in any of the activities described above.
We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.
TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND (B) COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OTHER THAN THOSE IMPLIED BY LAW, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMPANY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, PARTNERS ,AND LICENSORS (COLLECTIVELY, “OMEN AGENCY ENTITIES”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY OMEN AGENCY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 18 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE OMEN AGENCY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF $100 AND THE AMOUNTS YOU HAVE PAID TO COMPANY, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST US.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify the Omen Agency Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right (including, without limitation, in connection with any use of User Content or a Sound); or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of those claims.
a. Term. These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described below.
b. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminates. In addition, Company may, at its sole discretion, terminate these Terms or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law. We may also change, suspend, or discontinue any aspect of the Service at any time. You may terminate your account with these Terms at any time by sending an email to support@OmenAgency.com or use any termination functionality that may be offered through the Service. Upon termination of these Terms for any reason, then all of your User Content may be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by or for us. You grant us a royalty-free license to retain such back-up copies of your User Content on storage media maintained by or for us. If you stop using the Service but keep User Content on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.
If I cancel my account, do I lose access to all of my sounds and repacks?
If you cancel your subscription, you will maintain access to Omen Sounds until the end of your billing cycle, at which point you will no longer be charged and lose access to the browser and your online sounds and repacks. However, you will still have access to the samples and loops you have downloaded and stored on your computer, and the license granted to you for those sounds is perpetual. We do not guarantee that your online sounds and repacks will be saved after you cancel. If you cancel your subscription Company, at its sole discretion delete your online sounds, and repacks at any time for any reason or no reason, with or without notice. If we terminate these Terms or suspend or terminate your access to the Service, at any time for any reason or no reason, Company, at its sole discretion delete your online sounds, and repacks at any time for any reason or no reason, with or without notice.
a. We are not a party to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. Disputes between Users are subject to Section 13. This Section governs disputes between a User and us.
b. Generally. In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, and except as described in Section 18.c, you and Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
c. Exceptions. Despite the provisions of Section 18.b, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
d. Arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ (the “JAMS Rules”). The JAMS Rules are available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Subscriber will be responsible for all cost.
e. Authority of Arbitrator. The arbitrator will have exclusive authority to (i) determine the scope and enforceability of this Section 18 and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Section 18 including, but not limited to, any claim that all or any part of this Section 18 is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including this Section 18).
f. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is: The Omen Agency, Inc. d/b/a The Omen, The Omen Agency. 1984 Howell Mill NW P.O. Box 20051 Atlanta, Georgia 30325. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
g. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
h. No Class Actions. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
i. Modifications to this Arbitration Provision. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
j. Enforceability. If Section 18.h is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
The Omen Agency.
1984 Howell Mill NW
P.O. Box 20051
Atlanta, Georgia 30325
NOTICE REGARDING APPLE. You acknowledge that these Terms are between you and Company only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Company provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.