Please review these Terms of Service (the “Agreement”) carefully. By accessing or using the Service (as defined below), including by registering for a HIFI Account (as defined below), you are agreeing to this Agreement.
This Agreement is between you and RCRDCLUB Corporation d/b/a HIFI (“HIFI” or “we” or “us”) concerning your access to and use of the HIFI mobile software application (the “App”) and any related web sites (together with any materials and services available therein, and successor site(s) and application(s) thereto, the “Service”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by HIFI through the Service, or otherwise made available to you by HIFI.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 19 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Service following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Service; charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users.
Eligibility. In order to access or use the Service, you must be a professional musician, or songwriter, or a manager of professional musicians or songwriters, or a company or other organization in the music industry music industry professional and meet our eligibility requirements as set out below.
Age Requirement. By using the Service, you affirm that you are at least 13 years of age and, if you are not of legal age to enter into this Agreement, you have obtained parental or guardian consent to enter into this Agreement and your parent or guardian also agrees to be bound by this Agreement. Notwithstanding the foregoing, if you are under thirteen (13) years old, you are not permitted to access or use the service, even if a parent or legal guardian would be willing to provide consent.
Requirements for Organizations. If you are an individual accessing or using the Service on behalf of, or for the benefit of, any corporation or other organization (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent, warrant and covenant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual accessing and/or using the Service and to any such Organization.
Requirements for Groups. If you are an individual or an Organization accessing or using the Service not only on your own behalf or for your own benefit, but also on behalf of, or for the benefit of, any other individual, band or other group of individuals (a “Group”), then you are agreeing to this Agreement on behalf of yourself and such Group (including each member of the Group), and you represent, warrant and covenant that you have and will maintain the legal authority to bind such Group (including each member of the group) to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual or Organization accessing and/or using the Service and to such Group (including each member of the Group. Upon our request at any time, you will provide us with written confirmation from each member of such Group that you have the legal authority to bind him or her to this Agreement, and that they are bound by this Agreement. If any member of such group does not meet the age requirement set forth in Section 1(a), and you are not a parent or guardian of such member, you represent and warrant that such member has obtained parental or legal guardian consent to be bound by this agreement, and that such parent or legal guardian has also agrees to be bound by this Agreement. Notwithstanding the foregoing, and as noted above, minors under the age of thirteen (13) are not permitted to access or use the service, and cannot be included in a group; accordingly, you must not access or use the service on behalf of, or for the benefit of, a minor under the age of thirteen (13) or any group that includes any such minor.
Registration. You may need to register an account to use all or part of the Service (“HIFI Account”). Because each HIFI Account may only be associated one with one individual, one Organization or one Group, you may only register a HIFI Account on behalf of yourself, on behalf of your Organization or on behalf of your Group, as applicable. If you are registering a HIFI Account on behalf of an Organization or a Group, you represent and warrant that you have the authority to register a HIFI Account on behalf of such Organization or Group. You, and not HIFI, are responsible for any use or misuse of your HIFI Account, and you must promptly notify us of any confidentiality breach or unauthorized access to your HIFI Account.
Text Message Authorization. When you register for a HIFI Account, you will be asked to provide a phone number for a device that can receive text messages. As part of our user authentication and security process, we will send a numeric code to the phone number that you provide to us at the time of registration and ask you to input the numeric code in order to complete your registration. We may also repeat the process of sending you a numeric code by text and asking you to input the code each time that you login from a device that we do not recognize. You consent to receiving the numeric codes by text message to the phone number that you provide by any means, including through an automated telephone dialing system. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. To no longer receive text messages, you must stop your use of the Service.
Third Party Services and Materials. We may make available the ability for you to log into, and connect your HIFI Account with, your, your Organization’s or your Group’s (as applicable) account(s) on certain third party platforms and services (each such service, a “Third Party Service” and, each such account, a “Third Party Service Account”). A Third Party Service Account may not be connected to more than one HIFI Account, and you will not be permitted to connect your HIFI Account with a Third Party Service Account that is already connected to another user’s HIFI Account. If you are a member of a Group, it is solely the responsible of you and other Group members (and not HIFI) to determine what HIFI Account will be used to connect to the Group’s Third Party Service Accounts.
By connecting your HIFI Account with one or more Third Party Service Accounts, you hereby authorize and direct us to access each such Third Party Service Account through the applicable Third Party Service, on behalf of yourself, your Organization or your Group and each member of your Group (as applicable), to automatically access, retrieve, process and use any information, content and other materials associated with each such Third Party Service Account (“Third Party Service Materials”) to provide the Service (including to analyze, reformat and display such Third Party Service Materials in connection with the Service). You represent, warrant and covenant that you have and will have the right to authorize and direct us to access each such Third Party Service Account as set forth above.
You may ask us to stop accessing, retrieving and processing information available on any particular Third Party Service by emailing us at firstname.lastname@example.org; you acknowledge that, if you do so, it may reduce the value of the Service to you. If you suspect or are aware of an unauthorized third party connecting your or your Group’s Third Party Service Account to such third party’s HIFI Account, you may contact us at email@example.com.
Third Party Services may be subject to their own terms and conditions; if you connect your HIFI Account to any Third Party Service Account, you are solely responsible for complying with the terms and conditions of the applicable Third Party Service. If you are an Organization or a member of a Group, you are solely responsible for determining to whom, and the extent to which, Third Party Service Account information may be shared, and are solely responsible for ensuring that such sharing is in accordance with the terms and conditions of the applicable Third Party Service. We do not own, operate or control the Third Party Services, and we do not make any guarantees with respect to the accessibility or availability of any Third Party Service.
Certain Service functionality may make available access to other information, products, services and materials made available by third parties (“Other Third Party Materials” and together with Third Party Service Materials, “Third Party Materials”), or allow for the routing or transmission of such Other Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Other Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, incomplete, misleading, false or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by HIFI with respect to any Third Party Materials. We have no obligation to monitor or review Third Party Materials and may, at any time and for any reason, remove, block, disable or limit access to any Third Party Materials and/or Third Party Service and, if we remove, block, disable or limit such access, we will not access, retrieve and process information available on such Third Party Materials and/or Third Party Services that you have directed us to access on your behalf. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
Jurisdictional Issues. The Service is controlled or operated (or both) from the United States, and is not intended to subject HIFI to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
Rules of Conduct. In connection with the Service, you must not:
Connect your HIFI Account with any Third Party Service Accounts for which you do not have the authority or right to connect.
If you registered a HIFI Account on behalf of an Organization or a Group, but are no longer part of that Organization or Group, continue to access or use such HIFI Account (if at any time you lose such authority, you will promptly notify us of such loss of authority).
Register multiple HIFI Accounts for a single Organization or Group.
Make available through or in connection with the Service any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
Make available through or in connection with the Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
Use the Service for any purpose that is fraudulent or otherwise tortious or unlawful or in violation of any agreements that you, your Organization or your Group (as applicable) have entered into with any third parties.
Harvest or collect information about users of the Service.
Interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service; or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Service.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without HIFI’s express prior written consent.
Reverse engineer, decompile or disassemble any portion of the Service, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Service.
Frame or mirror any portion of the Service, or otherwise incorporate any portion of the Service into any product or service, without HIFI’s express prior written consent.
Systematically download and store Service content.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.
Feedback. If you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Service or otherwise, you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place HIFI under any fiduciary or other obligation. HIFI may freely use any Feedback that you provide without any obligation of compensation to you or any third party.
Your Limited Rights. The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by HIFI to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a mobile device that you own or control, solely as necessary to access and use the Service. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.
HIFI’s Proprietary Rights. We and our suppliers own the Service, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include HIFI and any associated logos. All trade names, trademarks, service marks and logos on the Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the Service (including your HIFI Account) and any Third Party Service Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) HIFI disclaims all warranties with respect to the Service and any Third Party Service Materials, including the warranties of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement and title. Providers of Third Party Services may separately provide limited representations and/or warranties regarding their Third Party Services and/or Third Party Service Materials; please check with such providers for further information. We make no representation or warranty that the Service or Third Party Materials will be accurate, complete, error-free or up-to-date. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit ofboth HIFI and its affiliates and their respective directors, officers, employees, affiliates, agents, representatives, licensors and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors and materials that violate or conflict with this Agreement.
Limitation of Liability. To the fullest extent permitted under applicable law: (a) HIFI will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, HIFI will not be liable for damages of any kind resulting from your use of or inability to use the Service or Third Party Service Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Service or Third Party Service Materials is to stop using the Service; and (d) the maximum aggregate liability of HIFI for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of (I) Ten Dollars ($10.00) or (II) the total amount, if any, paid by you to HIFI to use the Service. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both HIFI and the Affiliated Entities, and their respective successors and assigns.
Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless HIFI and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Service (including the use of Third Party Service Accounts connected to your HIFI Account and your use of the Service in connection with Third Party Services); (b) any violation or alleged violation of this Agreement by you; and (c) if you are a member of a Group (including a manager of a Group) any dispute or alleged dispute between or among members of such Group (including yourself) regarding your HIFI Account and/or the Service (including any issues relating to access to or use of the Service).
Termination. This Agreement is effective until terminated. HIFI may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if HIFI believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Service will immediately cease, and HIFI may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 5–9 and 11–19 shall survive any expiration or termination of this Agreement.
Governing Law; Dispute Resolution. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND HIFI, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT HIFI AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules, as amended by this Agreement. The Commercial Arbitration Rules are available online at https://adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf. Any in-person appearances will be held in New York County, New York State. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
With respect to Groups, any and all disputes regarding a HIFI Account and/or the Service (including any access to or use thereof) between or among members of a Group must be handled directly among the members of such Group. You agree that all such disputes shall be addressed and without our involvement, that we will not be a party to any such dispute and that we shall have no liability or obligation to assist in any such dispute (for purposes of clarification, and without limiting our rights and remedies hereunder, any effort to bring us into any such dispute will be subject to this Section 16).
Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and HIFI. You agree and acknowledge that the Service (including any Third Party Services and/or Third Party Materials) do not constitute financial advice or advice concerning any asset, and HIFI is not acting as a financial advisor to any person. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and HIFI relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and HIFI relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. HIFI will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to HIFI in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, HIFI’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.