Effective Date: May 22th, 2018
Last Updated: May 22th, 2018
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 the “Arbitration, Class Waiver, and Waiver of Jury Trial” Section below for the details regarding your agreement to arbitrate any disputes with Company.
a. Binding Agreement. These Terms are a binding agreement between you, a User (as defined below), and Digital Enhancement S.L. and its affiliates and subsidiaries (collectively, “Company,” “we,” “us”). “User” means a visitor to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, then do not use the Service.
b. Revisions to Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. 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. Except as expressly permitted in this Section 1.b, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. 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.
c. Children. 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. By using the Service, you represent and warrant you are at least 18 years of age. If you are under 18 years of age, then you affirm that you possess the legal consent of your parent or guardian to access and use the Service.
d. The terms “Post” and “Posting” as used in these Terms means submitting, uploading, publishing, displaying, or similar action on the Service.
a. The “Service” means the website located at www.clusterbeat.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 is an online platform that acts as an intermediary between users, providing a way to share, discover, and download audio samples. We are not responsible for any content shared by users, we only provide a web technology service that allows users to share audio files. The shared files are supervised to ensure the uniformity and quality of the platform. As the Service evolves, we reserve the right to make changes to the Service in our sole discretion. You agree to these Terms in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which you acknowledge.
If you access the Service through a mobile device, then you are responsible for all charges you incur, including data fees, from your wireless service carrier.
We use third-party services to help us provide the Service, but such use does not indicate that we endorse them or are responsible or liable for their actions.
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 Company Content (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. To use some parts of the Service, such as Like and Download Sounds, you must 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., Hardwell) 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 true, accurate, current, 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 in 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. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
b. Your Log-In Credentials. You are responsible for maintaining the confidentiality of your log-in 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 log-in 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.
a. You agree to receive email from us at the email address you provided to us for customer service-related purposes.
b. Electronic Notices. By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and 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.
Clusterbeat Sounds is a subscription service (“Sounds”) that allows Users to acess a fixed number of credits (“Credits”) per month to redeem for downloads of samples and other materials from the Service (materials available for download through Clusterbeat Sounds are “Sounds”). Only downloads of Sounds require a Credit; previewing or auditioning a Sounds, saving a Sound to “Your Sounds” for future use, in each case without downloading a Sound, does not require a Credit. Once you redeem a Credit for a Sound, you may re-download that Sound an unlimited amount of times from Clusterbeat Sounds without using additional Credits in the Pro plan but not in the Free plan.
a.Upload Sounds.By uploading the sounds, you declare that you are the author or have the corresponding license or authorization to play them, plagiarize them, distribute them and communicate them publicly. By sharing them you authorize any registered user to listen to them, download them and use them in their musical works without any type of royalties.
b.Download sounds.Considering that, in general, originality is an essential requirement in the combination of the three fundamental elements for there to be musical work and are: harmony, melody and rhythm. Consequently it is clear that neither the scales, nor the rhythms, chords, tones etc are subject to protection. The user may use sounds in their own works without any type of royalties, as long as they do not consider the sample used as musical work owned by a third party. We are not responsible for how you use the sounds obtained through downloads made in this service.
c.Free Plan. The free service plan is a mode in which a user can try the service for free without entering card data. To be able to access the free trial of the service, the user needs to register by creating an account (as indicated in point 3.Creation of an account and your account) once registered, the user will have access to the service except downloads, to activate them, you must share contributing its sounds to the community of Clusterbeat users taking into account what is described in section "a" of this section. Once the downloads are activated, the service allows you to download a limited number of monthly downloads. We reserve the right to change this number at any time, and for the reason we consider. No type of mastering service is included in this modality, but it can be acquired separately.
d.Pro Plan.The pro-service plan is a monthly subscription method in which the user pays for the use of the platform on a monthly basis. The features included and the rate and subscription will be established in the service in the tab called "Plan" that can be found in the navigation bar of the site. This amount and / or characteristics may be variable from one month to another and we reserve the right not to expressly notify of its variation. Unless you have a free trial version, when you register with Clusterbeat Sounds, we will charge you the payment method you entered in the Service for the subscription fee. No type of mastering service is included in this mode, but it can be purchased to part.
e. License. Sounds are licensed, not sold, to you. Subject to Section 6.b below, you are granted a non-exclusive, non-transferable, perpetual right to use Sounds you obtain through Clusterbeat Sounds in combination with other sounds in music productions to create derivative works. This means that, subject to Section 6.b, you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public and otherwise use Sounds, including for commercial purposes.
f. License Restrictions. You may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Additionally, for clarity, you may not use the name, image, or likeness of the artist associated with a Sound in any way without that artist’s express written permission.
g. Ownership. You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound.
h. Auto-Renewals. Your Clusterbeat Sounds subscription will auto-renew each month until you cancel it. You may also upgrade or downgrade your subscription through your account page. UNLESS YOU HAVE A FREE TRIAL, YOU MUST PAY FOR YOUR SUBSCRIPTION TO CLUSTERBEAT SOUNDS PRIOR TO USING CLUSTERBEAT SOUNDS. BY PURCHASING A SUBSCRIPTION TO CLUSTERBEAT SOUNDS, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY PERIODS UNLESS YOU CANCEL YOUR SUBSCRIPTION AS FURTHER DESCRIBED BELOW. YOU AUTHORIZE COMPANY TO CHARGE THE PAYMENT METHOD THAT OUR SERVICE PROVIDER HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT MONTHLY SUBSCRIPTION FEE PLUS ANY APPLICABLE TAXES. WE WILL CHARGE YOUR PAYMENT METHOD FOR THE SUBSCRIPTION FEE EACH MONTH ON THE DAY CORRESPONDING TO THE DATE YOU SIGNED UP FOR CLUSTERBEAT SOUNDS, OR, IF NO SUCH DATE EXISTS IN A GIVEN MONTH, THEN THE LAST DAY OF SUCH MONTH. SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
i. Refunds; Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE CLUSTERBEAT SOUNDS AT ANY TIME, AFTER WHICH WE WILL NOT RENEW YOUR SUBSCRIPTION. TO CANCEL YOUR SUBSCRIPTION, PLEASE VISIT THE BILLING SECTION OF YOUR ACCOUNT PAGE. IF YOU CANCEL YOUR SUBSCRIPTION, THEN YOUR CANCELLATION WILL BE EFFECTIVE AT THE END OF THE SUBSCRIPTION MONTH IN WHICH YOU CANCEL. FURTHER, COMPANY MAY CANCEL A USER’S SUBSCRIPTION WITHOUT PROVIDING A REFUND IF SUCH USER BREACHES THESE TERMS.
The Service may provide you with an opportunity to purchase premium services and features developed by third parties, such as plug-ins (“Premium Add-Ons”). If you purchase a Premium Add-On through the Service, then any problems or support issues must be resolved with the third party developer of such Premium Add-On.
a. The contents of the Service include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and our content (collectively, “Company Content”). All Company Content and the compilation (meaning the collection, arrangement, and assembly) of all Company Content are the property of Company or its licensors and are protected under copyright, trademark, and other laws.
b. License to You. We authorize you, subject to these Terms, to access and use the Service and the Company Content (provided, however, that licenses to Sounds are subject to [TODO]: [Section 6]and licenses to Premium Add-Ons are subject to [TODO]: [Section 7]), and to install any Apps, solely for the use of the services we provide, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Company Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Company Content on any copy you make of the Company Content.
You may not copy, reproduce, republish, upload, post, transmit, or distribute any material made available on or through the Service in any way without written permission of the copyright owner, excluding Sounds, which are governed by [TODO]:[Section 6]. You may not download or copy materials that we do not make expressly available for download without our prior written permission. Modification of materials obtained from the Service, including, but not limited to, User Content, for any purpose not authorized in the Terms is a violation of our copyrights and other proprietary rights or those of our licensors, unless you have obtained express written authorization to the contrary.
c. No Implied Rights. There are no implied licenses granted in these Terms. All rights not granted herein are expressly reserved by us, our licensors, or the copyright owner of any User Content.
d. Company Marks. Clusterbeat, the Clusterbeat 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 agree not to display or use in any manner the Company Marks.
a. You may create a personal page (your “Profile”) on the Service on which you showcase your Liked and Downloaded Sounds. In this page you showcase your profile information and your picture. Your information will be subject to the license grants and other covenants, representations, and warranties set forth in these Terms.
a. We respect the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
b. 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.
c.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.
We appreciate hearing from our Users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), then we will:
(i) have a perpetual, irrevocable, royalty free, fully paid up, assignable, sublicensable, non-exclusive right in and to any Creative Ideas and will own exclusive rights to any derivative works based upon your Creative Ideas created by or for us;
(ii) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas;
and (iii) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
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. We do not endorse any, nor are we responsible for, 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.
c. You agree to 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. The following uses of the Service are prohibited. You may not: (i) attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
(ii) take any action that imposes an unreasonable load on the Service’s infrastructure;
(iii) frame or link to the Service without permission; (iv) use data mining, robots, or other data gathering devices on or through the Service;
(v) Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
(vi) disclose personal information about another person or harass, abuse, or Post objectionable, pornographic or obscene material;
(vii) sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
(viii) Post advertising or marketing links or content, except as specifically allowed by these Terms;
(ix) use the Service after your account has been terminated, without our consent;
(x) use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to us or others;
(xi) access the Service from a jurisdiction where it is illegal or unauthorized;
(xii) reproduce any part of the Service;
(xiii) Post any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in User Content;
(xiv) Post, transmit or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(xv) undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except as permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as we intend;
(xvi) solicit personal information from anyone under the age of 18;
(xvii) promote any criminal activity on the Service; or
(xviii) assist or permit any persons in engaging in any of the activities described above.
a. We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
b. We may review and remove any User Content at any time for any reason, including if you engage in activity which, in our sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service.
c. You are responsible for any claims, fees, fines, penalties, and other liability we or others incur caused by or arising out of your breach of these Terms and your use of the Service.
d. 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. This includes if we terminate your right to access or use the Service for a violation of these Terms. We will have no liability to you for denying you access to any User Content you Posted to the Service in the event of a breach of these Terms.
a. Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.
b. User Disputes. 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.
c. Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
d. Third-Party Sites. You are responsible for evaluating whether you want to access or use any Third Party Site. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on any Third Party Site. You assume all risk and we disclaim all liability arising from your use of them.
e. We make no promises and, to the fullest extent permitted by applicable law, disclaim all liability of specific results from the use of the Service.
a. Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or we terminate your account, subject to the survival provision of these Terms.
b. Termination by Us. We may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon our sole determination. You agree to our broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, then you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon our termination of your use of the Service, we may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
c. Termination by You. You may terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account, then e-mail email@example.com or use any termination functionality that may be offered through the Service. If you terminate your account, then all of your User Content will 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.
These Terms constitute the entire agreement between you and us concerning your use of the Service. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, then you and us nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect. The laws of the City of Valencia without reference to its choice or conflicts of law principles will govern these Terms and your use of the Service. You and Company submit to the personal and exclusive jurisdiction of the city courts and federal courts located within Valencia, Valencia for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Valencia, and we make no representation that Materials included in the Service are appropriate or available for use in other locations. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 5 (Your License to Us and Other Users), 7 (Our Content Ownership and Use), 11 (Intellectual Property Policy), 12 (Suggestions and Submissions), 13 (User Content Disclaimers, Limitations, and Prohibitions), 14 (Consequences of Violating these Terms), 15 (Our Liability), 16 (Term and Termination, 17 (General Terms), and 18 (Arbitration, Class Waiver, and Waiver of Jury Trial).[Revisar]
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 15.b. 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 [TODO]: [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. Arbitrator. Any arbitration between you and Company will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. e. 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: Digital Enhancement S.L Duque de Gaeta 30 , Valencia, Spain 46022 . 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. f. Fees. If you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 AAA Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA 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. g. 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. h. 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. i. Enforceability. If Section 18.g 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.
Digital Enhancement S.L.
Duque de Gaeta 30,
Valencia , Spain 46022