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Section 1 – Acceptance of Terms; Modifications.
These Terms of Service (the “Terms” and ”Agreement”) are a binding legal agreement between you and Emsi Solutions LLC, a company incorporated under the laws of Delaware (“Emsi,” “we,” “us” and “our”). The Terms govern your use of our software applications, resources and services for any person or establishment which plays music (“Service Providers”) and any person which makes a song request (“Requester”) to find each other, communicate with each other, and arrange for the provision of song request services (collectively, our “Emsi Service”). The Terms govern all use of the Emsi Service, whether you access it from our website at https://www.emsiapp.com (or any localized version) (the “Site”), our mobile applications, or any other access point we make available to you. Our other Policies applicable to your use of the Emsi Service are incorporated by reference into these Terms of Service. BY AGREEING TO THESE TERMS DURING THE ACCOUNT SIGN-UP PROCESS OR ACCESSING OR USING THE EMSI SERVICE WITHOUT AN ACCOUNT, YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT ACCEPT THEM, IN WHICH CASE YOU DO NOT HAVE THE RIGHT TO USE THE EMSI SERVICE.
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective (except as otherwise described in Section 19.10 below) when we post the modified Terms on the Emsi Service, unless otherwise required by applicable law. Your continued access and use of the Emsi Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
Section 2 – Definitions.
“Terms” or “Agreement” refers to, in descending order of priority, Special Conditions Agreement (if applicable), these Terms, the Privacy Policy, and any exhibits or appendixes attached thereto, and which together supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
“Emsi” “we” “us” or “our” refers to EMSI SOLUTIONS LLC
“Application” refers to either the proprietary Emsi quick response (QR) code, or the downloadable Emsi – Request a Song application, or downloadable Emsi DJ application, or any other application or product, current or future developed, made available to you under these Terms of Service and that allows Requesters to request a song directly via their smartphone.
“DJ/Club Account” or “Service Provider’s Profile” refers to the interface developed by us and made available to you, where you can accept or decline Song Requests, change the interface of your Profile, change your Tip Minimum, and access the details of the payments made by your Clients via the Application.
“User Account” or “User Profile” refers to any Account and Profile, Requester’s Account and Profile or Service Provider’s Account and Profile, created on the Application by a user.
“Requester” “Client” or “Customer” means an individual who makes use of the Application in order to send a song request to the Service Provider.
“Data” means all the data transmitted by you to us in the context of the performance of the Agreement.
“Data Protection Legislation” refers to the European Union’s General Data Protection Regulation (2016/679), (“GDPR”), the California Consumer Privacy Act, and the California Privacy Rights Act and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.
“Effective Date” refers to the effective date of the Agreement.
“Establishment” refers to any type of venue open to the public which plays music (e.g. bar, nightclub, festival, restaurant, etc.).
“Fees” refers to any combination of or collectively, Service Fees, Gratuity Fees, and/or Transaction Fees.
“Party” or “Parties” refers to Emsi, Service Providers, or Requesters, or all parties collectively.
“Payment Provider” means a secure payment service provider approved by us and that can handle the processing between Service Providers and Requesters using the Application.
“Personal Information” means information that you provide or for which you provide access to us, or information which we create or obtain on behalf of you, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, etc.).
“Emsi Service” “Services” or “Song Request Services” has the meaning set forth in Section 3.
“Service Fee” refers to a percentage on each transaction made by the Service Provider.
“Special Conditions Agreement” refers to a separate special additions agreement that may be executed between you and Emsi.
“Taxes” refers to any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever.
“Transaction Fee” refers to a fee for each transaction processed.
“Tip Minimum” refers to the lowest gratuity fee that can be chosen by the Requester which the Service Provider is willing to accept.
“Song Request” refers to a Song Request Form which has been submitted to the Service Provider via the Application through the Service Provider’s Emsi Profile and is pending approval by the Service Provider.
“Song Request Form” An order form which is found on a Service Provider’s Profile and completed by the Requester which includes the name of the song, the Tip Amount, The Service Provider’s Payment Information. The booking mechanism for provision of Song Request Services.
“Tip Amount” is the gratuity fee amount which is chosen by the Requester.
Section 3 – Emsi Service.
3.1 Nature of the Emsi Service. The Emsi Service consists of mobile applications, and other related tools, support, and services that individuals who would like to request a song (“Requesters”) and providers of song request-related services (“Service Providers”) can use to find, communicate with, and interact with each other. We charge fees for some aspects of the Emsi Service, as described below in Section 11.
3.2 Emsi does not provide Song Request Services. Emsi is a neutral venue for Service Providers and Requesters. Emsi is not a Service Provider and does not provide song request services. We make no representations or warranties about the duration of which a Service Provider decides to play an accepted Song Request for, how long it takes for a Service Provider to play a Song Request once it has been accepted, or whether the Service Provider actually fulfills the Song Request Service, and generally the quality of Song Request Services or other services provided by Service Providers, or about your interactions and dealings with users. Service Providers listed on Emsi are not under the direction or control of Emsi, and Service Providers determine in their own discretion how to provide Song Request Services. Though we provide general guidance on our website and via social media to Service Providers about Song Request Services and to Requesters about selecting and engaging Service Providers, Emsi does not employ, recommend or endorse Service Providers or Requesters, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Providers or Requesters, whether online or offline. We conduct an initial review of Service Provider Profiles, but do not otherwise screen Service Providers or Requesters. You should exercise caution and use your independent judgment before engaging a Service Provider, providing Song Request Services, or otherwise interacting with users via the Emsi Service. Requesters and Service Providers are solely responsible for making decisions that are in the best interests of themselves. Each user of the Emsi Service is responsible for keeping current any licenses necessary to participate in Song Request Services, such as Public Performance License, Public Communication License, and/or Blanket License Music, and we will have no liability for anyone’s failure to obtain any of these licenses and any other license necessary in order to perform Song Request Services.
3.3 Release. Subject to Section 18 below, Emsi has no liability for any claims, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Requesters, whether online or offline. You acknowledge and agree that, to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF SONG REQUEST SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
3.4 Transactions are between Requesters and Service Providers. The Emsi Service may be used to find and offer Song Request Services and to facilitate payment, but all transactions conducted via the Emsi Service are between Requesters and Service Providers. You agree that Emsi has no liability for damages associated with Song Request Services (which may include bodily injury or death) or resulting from any other transactions between users of the Emsi Service.
3.5 Song Requests. Requesters and Service Providers transact with each other on the Emsi Service when they both agree to a “Song Request Form” that includes the name of the song the Requester would like to hear, the selection of a customizable gratuity fee amount, selected payment method, an optional comment for the Service Provider, and other terms for provision of Song Request Services via the booking mechanism provided on the Emsi Service (a “Song Request Form”). A Song Request may be initiated by a Requester by entering the Profile of the Service Provider in the Application and selecting “Request song” to enter the Song Request Form. The Requester may enter their song of choice, select “Next” and then following the prompts that appear on-screen. If you are a Requester and you initiate a Song Request, you agree to pay for the Song Request Services described in the Song Request Form when you select the Authorization button, which also displays the final amount which will be charged to the payment method selected by the Requester. All song requests are subject to acceptance by Service Provider. If you are a Service Provider and you accept a Song Request, you agree to perform the Song Request Services described by the Requester in the Song Request Form. The Service Provider is not obligated to accept your (or any) song request and may, at their discretion, decline for any reason. You acknowledge that, once you complete a Song Request Form, you agree to honor the price and other terms of that Song Request, as acknowledged in the Song Request Form.
3.6 Requesters are Solely Responsible for Evaluating Service Providers. Requesters are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Though Emsi performs a limited review of Service Provider profiles, any such screening is limited, and Emsi does not warrant that any such review is accurate, complete, conclusive or up-to-date. Similarly, Emsi does not endorse reviews of Service Providers by other Requesters that may be available via the Emsi Service, and Emsi makes no commitments that such reviews are accurate or legitimate.
3.7 Services. Pursuant to this Agreement, we provide you, in a non-exclusive manner, the following Services:
Notwithstanding anything to the contrary contained in this Agreement, we may, from time to time change the Services without your consent, provided that such changes do not materially affect the nature or scope of the Services. In addition, we may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.
3.8 Application Availability. Except for maintenance periods and force majeure, we will use commercially reasonable efforts to ensure that the Application is accessible 24/7. In the event of a malfunction or interruption of the Services and upon notification by an e-mail sent by you to [email protected], we will make our best efforts to restore the Services as soon as possible.
Section 4 – Certification of Compliance with Applicable Law.
By accessing and using the Emsi Service, you certify that you: (1) are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, the Emsi Service.
You acknowledge that Emsi is entitled to rely on these certifications from you, is not responsible to ensure that all users have complied with applicable laws and regulations, and will not be liable for a user’s failure to do so.
Section 5 – Obligations.
You shall:
You will need certain equipment, software, and internet access to be able to access the Services. Acquiring, installing, maintaining, and operating equipment and internet access is solely your responsibility. We neither represent nor warrant that the Services will be accessible through all software or used with all operating systems.
You will: (a) be responsible for your employees and your contractors’ compliance with this Agreement and for all their acts and omissions; (b) be responsible for the accuracy, quality, and legality of any data you provide and promptly notify us of any unauthorized access or use of which you become aware; (d) comply with all laws, and in particular, any laws applicable to your respective use of the Services; and (e) promptly and fully cooperate with us and make the necessary personnel and resources available to us in order to deliver the Services, when we reasonably request.
In addition Service Providers are solely responsible for the following:
Section 6 – Use of the Emsi Service; Suspension.
6.1 Your Conduct on the Emsi Service. When you use the Emsi Service, you agree:
6.2 Suspension and Termination. You understand and agree that we have no obligation to provide the Emsi Service in any specific location or territory, nor to continue providing it once we have begun. We reserve the right to suspend or terminate your access to the Emsi Service: (1) if in our discretion your conduct on the Site or Emsi Service is inappropriate, unsafe, dishonest, or in breach of these terms; or (2) if necessary in our discretion to protect Emsi, its users, or the public. You may suspend or terminate your use of the Emsi Service at any time and for any reason.
Section 7 – Registration; Account Security.
In order to use some aspects of the Emsi Service, you will be required to create a username, password, and User Profile. If you elect to use the Emsi Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account (or, if Emsi suspends or terminates your account, not to create additional accounts). You are responsible for maintaining the confidentiality of your username and password for the Emsi Service and are responsible for all activity under your account. You Shall ensure that no unauthorized person has access to the Application. In the event of loss or theft of one of the usernames and passwords, you shall inform us as soon as possible so that we can restore your password allowing you access to the Application. You agree to notify us promptly of any unauthorized use of your account. In the event of a security breach due to your non-compliance with this Section, only you will be liable, and we shall not incur any liability related to the same.
Section 8 – Privacy.
Our collection and use of your personal information on the Emsi Service is described in our Privacy Statement. By accessing or using the Emsi Service, you acknowledge that you have read and understand the Privacy Statement.
Section 9 – Your Content.
9.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on the Emsi Service or otherwise in connection with using the Emsi Service and/or participating in promotional campaigns we conduct on our website and social media (collectively, “Your Content”). For example, users are invited to create a profile page with a photograph and other information.
9.2 License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant Emsi an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting the Emsi Service, and to sublicense these rights to third parties.
9.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Emsi and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 9.2 and the other provisions of these Terms.
9.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license in Section 9.2 and make the release in Section 9.3 with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear in Your Content; and (3) Your Content does not violate the law or these Terms.
9.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Emsi Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
9.6 Reviews. The Emsi Service may provide the ability to leave public and/or private reviews of Service Providers or Requesters. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that Emsi has no obligation to preserve or indefinitely store any reviews. If you are a Service Provider, we have no obligation to provide you with the content of any reviews about you submitted by other users of the Emsi Service, whether before or after termination of your account for the Emsi Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the Emsi Service at any time.
Section 10 – Communication.
10.1 Consent to Autodialed Text Messages. You consent to Emsi communicating with you about the Emsi Service by synchronous communications, SMS, text message, email and other electronic means, including autodialed text messages containing service information and/or marketing messages, even if your phone number is on the do-not-call list. Your carrier’s normal messaging, data and other rates and fees will apply to these communications. You are not required to provide this consent to receive marketing messages as a condition of using the Emsi Service, and you may opt-out of receiving these messages at any time as described in our Privacy Statement though you may continue to receive messages while Emsi processes your request.
10.2 Contact Information Changes. In the event you deactivate a mobile phone number, email, or any other contact method provided to us, you agree to update your Emsi account information promptly to ensure that messages are not sent to the person who acquires your old phone number, email, or other contact method.
Section 11 – Fees.
11.1 Fees. We will receive the following Fees as remuneration for our Services:
Fees are non-cancelable and non-refundable. Our Fees do not include any Taxes. You are responsible for paying all Taxes associated with using the Application and providing Song Request Services. All our transaction fees made in the European Union will be subject to EU VAT “reverse charge mechanism.”
11.2 Fee Deduction. The Service Fees and Transaction Fees will be directly deducted from the transactions carried out between Service Providers and Requesters via the Application which all Parties expressly accept.
11.3 Song Request History. Service Providers may view their Song Request History from his or her DJ/Club Account. We will provide Service Providers with information regarding the history of payments made by Requesters, the songs which were requested, and the date and time in which the song was accepted “Song Request History”.
11.4 Reporting a Problem. Any disagreement related to Song Request Services must be reported by email to [email protected] within thirty (30) days of the Song Request date.
11.5 Currency. All fees, deductible amounts and other payments referenced on, or charged through, the Emsi Service are payable in local currency.
11.6 Fees for Requesters. Requesters may request Song Request Services from a Service Provider by completing a Song Request Form which includes the name of the song the Requester would like to hear, the selection of a customizable gratuity fee amount, selected payment method, and an optional comment for the Service Provider, as described in Section 3.5. If you are a Requester, you enter into a transaction with the Service Provider when you send a Song Request Form to the Service Provider, and you agree to pay the total fees indicated in the Song Request Form. As described in Section 11.8, the total amount Requesters are charged for a Song Request also includes a Request Fee payable to Emsi. The Service Provider, not Emsi, is responsible for performing the Song Request Services. You agree that Emsi is not liable for a Service Provider’s failure to perform Song Request Services.
11.7 Fees for Service Providers. Service Providers may agree to provide Song Request Services to a Requester by accepting a Song Request as described in Section 3.5. If you are a Service Provider, you must accept the Song Request before it expires, or the Requester will have no obligation to complete the transaction. Once the Song Request Form is completed by the Requester and accepted by the Service Provider, you agree to honor the price set forth in the Song Request Form. The Song Request Service involves a transaction between the Requester and the Service Provider. Emsi’s role is to facilitate the transaction. We will (either directly or indirectly through an authorized third party) collect payment from the Requester once the Song Request Form is completed and (except to the extent of any payment hold pursuant to Section 11.10) initiate payment to the Service Provider’s account once the Song Request is accepted. Service Providers are charged a service fee as described in Section 11.8.
11.8 Service Fees. We charge service fees for some aspects of the Emsi Service. If you are a Service Provider, our service fee is calculated as a percentage of the fees a Requester agrees to pay to you in a Song Request Form and is collected from each accepted Song Request. If you are a Requester, our service fee is added to the customized gratuity fee you have selected in the Song Request Form.
11.9 Cancellations & Refunds.
11.10 Payment Holds. If you are a Service Provider, Emsi reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 11.7 if there is a reasonable suspicion of fraudulent activity involving your account(s) or for other similarly compelling reason involving protection of Emsi, the Emsi community or third party rights. We may also recommend that third party payment service providers restrict your access to funds in your account under the same circumstances.
11.11 Authorization to Charge. When you pay for Song Request Services or for other services on the Emsi Service, you will be required to provide us with valid, up-to-date credit card or other payment information and to maintain that payment information on file with your account. Emsi’s role is to facilitate payments from Requesters to Service Providers as limited payment agent for the Service Provider. You authorize us to charge your credit card or other payment method for fees you incur on the Emsi Service. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither Emsi nor the Service Provider will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Emsi Service are non-refundable once paid.
11.12 Taxes. Except for taxes on Emsi’s income and gross receipts or where Emsi is otherwise required to collect taxes, you acknowledge that you are solely responsible to pay any applicable taxes that arise as a result of your transaction, provision, or use of Song Request Services via the Emsi Service. This includes, without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through the Emsi Service. All our transaction fees made in the European Union will be subject to EU VAT “reverse charge mechanism.”
11.13 Payment Processing. Payment processing services are provided by Stripe and subject to the Stripe Services Agreement (available at https://stripe.com/us/legal), and, if you are receiving payments via the Emsi Service, the Stripe Connected Account Agreement (available at https://stripe.com/us/connect-account/legal) (collectively, the “Stripe Terms”). By using the Emsi Service to receive payment, you will be asked to set up a Stripe account and accept the Stripe Terms. You authorize Emsi to obtain all necessary access to, and perform all necessary activity on (including requesting refunds where appropriate), your Stripe Connected Account to facilitate payment related to Song Request Services you purchase or provide. You further agree to provide accurate and complete information about you and your business, and authorize Emsi to share it and transaction information with Stripe for the purposes of facilitating the payment processing services provided by Stripe. Emsi reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion.
Section 12 – Copyright Infringement.
Emsi follows the procedures of the Digital Millennium Copyright Act. We will respond to claims of copyright infringement that are reported in accordance with this Section. It is our policy, in appropriate circumstances, to deactivate or terminate the access of users who repeatedly infringe or are repeatedly charged with infringing others’ copyrights or other intellectual property rights.
If you believe in good faith that your copyrighted work has been infringed by content posted on the Emsi Service, please provide our designated copyright agent with a written notice that includes all of the following information:
Our designated agent for notice of copyright infringement can be reached at:
[email protected]
Section 13 – Third Party Services, Links.
The Emsi Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Section 14 – Indemnity.
TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD EMSI HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the Emsi Service; (2) breach of these Terms; (3) disputes with other users of the Emsi Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties related to Song Request Services; or (6) Your Content. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
Section 15 – Intellectual Property.
15.1 Emsi Service. Emsi and its licensors retain all right, title and interest in and to the Emsi Service, the technology and software used to provide it, all electronic documentation and content available through the Emsi Service (other than Your Content), and all intellectual property and proprietary rights in the Emsi Service and such technology, software, documentation and content. Except for your rights to access and use the Emsi Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the Emsi Service any feedback or suggestions for improvement that you provide to us concerning the Emsi Service, without any obligation of compensation.
15.2 Emsi Trademarks. Emsi owns all rights in and to its trademarks, service marks, brand names and logos (the “Emsi Marks”). If you are a Service Provider, Emsi grants you, for so long as you are in good standing on the Emsi Service, a limited, revocable, non-exclusive, non-transferable license to use the Emsi Marks solely: (1) in the form incorporated into goods, including customizable marketing collateral (promo cards, signage etc.) and/or (2) in any other manner specifically authorized in writing via the Emsi Service. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the Emsi Marks inures solely to the benefit of Emsi, and (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because Emsi suspends or terminates your rights to use the Emsi Service.
Section 16 – Ownership.
16.1 Ownership of the Application.
16.2 Use of Data. We implement commercially reasonable means designed to prevent the unauthorized loss or access to Data. You grant to us and our subcontractors a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, translate, and otherwise use and process Data (i) as reasonably necessary or useful to perform and improve the Services and for the exercise of our rights under this Agreement, (ii) optimizing the usage experience, and/or (iii) providing – analytical or statistical – tools aimed at increasing profitability and/or visibility. You warrant to us that you have the right to grant the foregoing license and provide Data to us in accordance with this Agreement.
Section 17 – Warranty Disclaimer for the Emsi Service.
The information and materials found on the Emsi Service, including text, graphics, information, links or other items, are provided “as is” and “as available.” Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the Emsi Service, but not directly by Emsi, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMSI DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE EMSI SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN EMSI; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE EMSI SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EMSI EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE EMSI SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS SONG REQUEST SERVICES VIA THE EMSI SERVICE.
Section 18 – Limitation of Liability.
18.1 Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will Emsi be liable to you for any indirect, special, incidental, or consequential damages, or for any business losses, or loss of profit, revenue, contracts, data, goodwill or other similar losses or expenses that arise out of or relate to the use of or inability to use the Emsi Service, including without limitation damages related to any information received from the Emsi Service, removal of your profile information or review (or other content) from the Emsi Service, any suspension or termination of your access to the Emsi Service, or any failure, error, omission, interruption, defect, delay in operation, Song Request Services, or transmission of the Emsi Service, even if we are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
18.2 Limit on Our Liability to You. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL EMSI’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO THE EMSI SERVICE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO EMSI (SPECIFICALLY EXCLUDING AMOUNTS PAID TO SERVICE PROVIDERS) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY OR, IF YOU HAVE NOT PAID EMSI FOR THE USE OF ANY SERVICES, THE AMOUNT OF $100.00 USD (OR EQUIVALENT IN LOCAL CURRENCY).
18.3 No Liability for non-Emsi Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EMSI BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE EMSI SERVICE, INCLUDING WITHOUT LIMITATION, PROPERTY DAMAGE, THEFT, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE EMSI SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE EMSI SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR REQUESTER, YOU AGREE TO RELEASE EMSI FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL EMSI BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A REQUESTER OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
Section 19 – Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EMSI AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. IF YOU RESIDE WITHIN THE EUROPEAN ECONOMIC AREA, THIS SECTION APPLIES ONLY TO BUSINESS CUSTOMERS (NOT “CONSUMERS”). IF YOU ARE A CONSUMER RESIDING WITHIN THE EUROPEAN ECONOMIC AREA, PLEASE SEE SECTION 20.
19.1 Arbitration Agreement; Claims. This Section 19 is referred to as the “Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 19.9 below, you and Emsi (together, the “Parties”) agree that any and all disputes or claims that arise between you and Emsi relating to the Emsi Service, interactions with others on the Emsi Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 6.1, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
19.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 19.9 below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties’ dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
19.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND EMSI AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 19.9 BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EMSI AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER EMSI SERVICE USERS.
19.4 Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at [email protected]. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
19.5 Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted in English by a neutral arbitrator in accordance with your choice of the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) or the Rules of the International Center for Dispute Resolution (the “ICDR Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration, and the ICDR Rules are available at https://www.icdr.org/rules_forms_fees, and both Rules are incorporated in these Terms by reference. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 18. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 USD (or equivalent in local currency) or less, you or Emsi may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Emsi subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Emsi, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware (or of England and Wales if you are located outside of the United States or Canada), including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Emsi users, but is bound by rulings in prior arbitrations involving the same Emsi user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
19.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be shared equally by you and Emsi, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Emsi will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Emsi will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Emsi for all fees associated with the arbitration paid by Emsi on your behalf that you otherwise would be obligated to pay under the JAMS or ICDR Rules.
19.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
19.8 Severability. If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable.
19.9 Opt-Out Procedure. You can choose to reject this Arbitration Agreement by emailing us a written opt-out notice (“Opt-Out Notice“) in accordance with the terms of this Section 19.9. The Opt-Out Notice must be sent by email no later than 30 days after the date you accept these Terms for the first time. You must email the Opt-Out Notice to [email protected]. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Emsi Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 20.
19.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Emsi prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Emsi prior to the effective date of removal.
Section 20 – Governing Law and Jurisdiction.
20.1 For users in the United States and Canada, these Terms, and any dispute between you and Emsi, will be governed by the laws of the State of Delaware, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 19 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Emsi must be resolved exclusively by a state or federal court located in the State of Delaware. You and Emsi agree to submit to the personal jurisdiction of the courts located within Delaware for the purpose of litigating all such claims or disputes.
20.2 For users in the EEA (and the United Kingdom should it no longer be part of the EEA), the laws of England shall govern these terms, except that if you live in a country outside of England but within the EEA, certain mandatory applicable laws of your country will apply for your benefit and protection in addition to or instead of certain provisions of English law. Any dispute that arises between you and Emsi must be resolved by the English courts or the courts in your country if you live in the EEA outside of England.
20.3 If you are a consumer in the European Economic Area, the European Online Dispute Resolution platform http://ec.europa.eu/consumers/odr provides information about alternative dispute resolution, which you may use if there is a dispute that cannot be resolved between you and the relevant party.
Section 21 – Force Majeure.
Neither Party will be liable for delay or failure in performing any of its obligations (other than payment obligations) hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations or orders, epidemics or pandemics, terrorism, denial of service, ransomware or other cyberattacks, communication or utility failures or casualties or the failures or acts of third parties.
Section 22 – Reference.
It is agreed between the Parties that we may reproduce and represent your trademarks, logos, designs and models, trade names, company names, and more generally any other right attached to the services and products belonging to you as a reference, including in the context of marketing operations on any medium and by any process of our choice such as presentations, website brochures, etc., with any third party, regardless of the method of communication.
© 2021 EMSI SOLUTIONS LLC
