TERMS OF SERVICE
TERMS OF SERVICE
Thank you for your interest in and use of our products and services and the content contained therein (the “Services”). The following terms of service (the “Terms”) apply to all of our Services, whether accessed or used via our website www.cascade.fm (the “Site”) or via our mobile application (the “App”) The Site and the App are individually and collectively referred to herein as the “Platform”. The Platform is operated by Cascade FM, LLC., a Delaware limited liability company (“Company”). Please read the these Terms fully and carefully before using the Platform. These Terms constitute a legally binding agreement between you (“You” or “Your”) and Company and they exclusively govern Your use of the Platform. By accessing, browsing, contributing, viewing, registering, or otherwise using the Platform, You unconditionally accept and agree to be bound by the Terms. If You do not agree to these Terms, You are not granted permission to access or use the Platform or Services for any purpose, and You must immediately cease accessing and using the Platform and Services.
The Platform is a music streaming platform which gives unsigned talent the opportunity to connect with, and be heard by, a new audience. Through direct licensing with content creators, Company makes its catalog of music available to businesses and individuals alike for a fraction of the cost of comparable services.
2.UPDATING OUR TERMS
The Terms are effective and were last updated on February 1, 2018. Company reserves the right to modify, alter, amend, or update the Terms at any time without notice to You in Company’s sole and absolute discretion, and such new Terms shall immediately take effect upon Company posting such new Terms on the Site and/or the App. You are encouraged to frequently visit this page from time to time to review Company’s current Terms. Notwithstanding the foregoing, Company will attempt to notify You in advance of any changes to the Terms. Notice of any new or revised Terms will appear on the Site and/or the App. Your continued use of the Platform following any changes to the Terms shall be deemed Your acceptance of all changes and Your agreement to be bound by the most current Terms. Any questions, requests for assistance, thoughts, or complaints regarding the Terms can be directed to Company at: email@example.com.
You are also required to authenticate Your Account through entering a username and password prior to Your use of the Platform. You are solely responsible for activity that occurs on Your Account. In that regard, you agree to keep Your username and password secure, and You must notify Company immediately upon any breach of security or unauthorized use of Your Account. If You access or use the Platform on a public computer, or unprotected mobile device, You acknowledge it is Your responsibility to log out of the Platform.
If you elect to access any paid component of the Services, such as becoming a paid subscriber, you agree to pay all fees and charges associated with that paid component on a timely basis. Unless otherwise stated, all fees and charges are due and payable in advance, are non-refundable, and are exclusive of any applicable federal, state, or local taxes. All such fees and charges (including any taxes and late fees, as applicable) will be charged to the payment method you provided when you elected to access that paid component of the Services. You agree to maintain a valid payment method during the term of your use of such Services.
Use of the Services may involve transmission of data through your carrier or service provider's network. You are responsible for all carrier, text/SMS, data, or other related fees or charges you incur from your carrier or service provider in connection with, or related to your use of the Services. Company assumes no liability or responsibility for the payment of any charges you may incur.
You may cancel Your Account at any time by following the instructions found on Your Account page or the Platform settings page. Termination of Your Account will also terminate Your access to certain content available on the Platform. Regardless of Account cancellation, You remain obligated to pay Company for all amounts due to Company pursuant to Your use of the Platform or Services.
Company reserves the right to terminate Your Account and/or access to the Platform if You are determined, in Company’s sole discretion, to violate the Terms herein, or for any reason whatsoever or for no reason. Regardless of Account termination, You remain obligated to pay Company for all amounts due to Company pursuant to Your use of the Platform or Services.
- Free - Company offers users of the Platform free membership. All Free Membership accounts will allow You to “follow” other Accounts on the Platform, such as from a musical artist, “like” a song, and choose the genre of music You want to hear. You may also skip up to three (3) songs during any given listening session.
- Premium – Company offers premium (paid) membership, the benefits of which (and the associated fees) are set forth on the Platform and will be made available to You at the time of joining as, or upgrading to the status of, a premium member. If You choose to purchase a premium membership, Company shall renew Your premium membership subscription automatically on a month to month basis. Refunds will be extended in Company’s sole discretion. All promotional credits, free trials, or rebates extended by Company, or its affiliates, to You are for Your own personal use and are non-transferrable.
- Musical Artists – In order to become a musical artist featured on the Platform, You must enter into a separate agreement with Company which will be provided to you during your Account registration process (a “Music Agreement”).
- Businesses – In order to become a business licensee of Company, You must enter into a separate agreement with Company which will be provided to you during your Account registration process (a “Business Agreement”).
5.GRANT OF RIGHTS
Subject to your full compliance with all Terms herein, Company grants You a limited, revocable, nonexclusive, non-transferable, non-sublicensable right to use, view, and access the Platform and Services, and all materials found on or accessible through the Platform (the "Content") for the following limited purposes: viewing, uploading, streaming, downloading, purchasing, or otherwise using Content in a manner which is not violative of the Terms herein or the Music Agreement or Business Agreement. You may only access the Platform through the Site or the App.
As between You and Company, Company owns, licenses, controls, or is authorized to use or exploit all Company Content. For the avoidance of doubt, third parties, and not Company, may hold copyright, trademark, and other proprietary rights in and to certain Content on the Platform and the foregoing does not imply that Company owns the copyright in or to any user-generated content (such as an Artist uploading music or artwork to the Platform). Company acknowledges that the author of such user-generated content is the owner of the same and Company’s rights into usergenerated content is contemplated by these Terms and/or in any applicable Music Agreement or Business Agreement.
The Platform and Company Content, as well as potentially user-generated content, are protected by, without limitation, the United States Copyright Act, the Lanham Act, various international conventions and treaties, and other applicable international copyright, trademark, and intellectual property laws. You shall not copy, capture, reproduce, remove, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit, in whole or in part, the Platform, Company Content, or user-generated content, unless otherwise explicitly permitted by these Terms and applicable laws. Any unauthorized activities that infringe upon the intellectual property rights of Company, its users, or its affiliates, is expressly prohibited and all rights in and to the Company Content and/or user-generated content are expressly reserved to the respective owner of such content. Any use of the Content, except as explicitly authorized by these Terms, is strictly prohibited and may subject You to civil liability under copyright laws, trademark laws, the laws of publicity or privacy, and other civil and criminal statutes, rules, or regulations.
Notwithstanding anything to the contrary contained herein or contained in any Music Agreement of Business Agreement, by submitting or uploading user-generated content to the Platform, You hereby grant Company, and its affiliates, a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable irrevocable license to access, advertise, display, distribute, exhibit, market, modify, perform, prepare derivative works, promote, redistribute, reproduce, use, view, and otherwise exploit the user-generated content in connection with the purposes of the Platform, through any media channels. Company may retain a copy, but not display, distribute, or perform, server copies of your user-generated content after you have removed or deleted such user generated content from the Platform.
6.USER-GENERATED CONTENT/THIRD PARTY CONTENT
Company does not endorse, nor offer any opinions, on any user generated-content submitted to the Platform by a user, nor does Company endorse or offer any opinions on the user-generated content contained on the Platform. You understand that by accessing the Platform and/or using the Services, You may encounter user-generated content You or the general public may deem offensive, indecent, or objectionable. Company does not review all user generated-content on the Platform and is not liable to You for any offensive, indecent, or objectionable user generated-content.
7.REPRESENTATIONS AND RESTRICTIONS
Except as otherwise specifically permitted in these Terms, You shall not: (a) modify, download, intercept, or create any derivative works of the Platform or Services, including any translations or localizations thereof; (b) access or use the Platform or Services through an application or means not authorized by Company; (c) copy, store, edit, change, exploit, download, prepare any derivative work of, or alter in any way any of the content made available through the Services; (d) license, sell, rent, lease, encumber, transfer, assign, distribute, disclose, post, make available, permit time sharing or simultaneous use of, or otherwise exploit the Platform or Services to or for the benefit of any third party; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, underlying ideas, or structure or organization of the Platform or Services; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels on the Platform or Services; (g) publish or provide any results of any Services, in whole or in part, aggregated or otherwise, to a third party without Company’s prior written consent; (h) provide your username and password used to access the Platform or Services to any third party; (i) use any systems or means, automated or otherwise, to access, acquire, copy, scrape, harvest, or monitor any part of the Platform or Services; (j) circumvent any technological measures employed by or on behalf of Company to protect the Platform or Services; (k) use any other technologies or initiate any other activities that may harm the Platform or Services, or the interests or property of Company or other users of the Platform or Services; (l) aid or encourage any third party to engage in any activity that would constitute a breach of these Terms; and (m) submit or post any information or content on the Platform, or otherwise contact any other user on the Platform, with information or content that is unsolicited, constitutes as SPAM, is abusive, harassing, threatening, obscene, defamatory, or racially, sexually, religiously, or otherwise objectionable and offensive, or otherwise is against the interests of Company, including, without limitation, soliciting third parties on the Platform to enter into business relationships that are competitive with Company.
Company does not warrant that the use of Platform or Services will not infringe the rights of any third party, and assumes no responsibility or liability arising from such use, or for any error, defamation, omission, obscenity, or danger, contained within the Platform or Services and/or via any content available via the Platform or Services. Company, and its affiliates, are not responsible for and do not guarantee the accuracy or completeness of anything contained on or within the Platform, including any content, links, or advertisements. Company, and its affiliates, reserves the right to immediately change, suspend, remove, or disable the Platform or any content contained therein for any reason or for no reason, and Company assumes no responsibility, and shall not be liable in any way for any such change to such content or other change to the Platform or Services. Company cannot and does not review all content or communications uploaded, made on, or through the Platform, but, although not obligated to do so, may review, verify, make changes to or remove any content or other material made available in connection with the Platform with or without notice in its sole discretion. The Platform, and all other features or functionalities associated with the Platform, are made available “as is” and “with all faults” and You understand that temporary interruptions of disturbances of the Platform, including, without limitation, Company’s ability to deliver content, may occur as normal events. Use of the Platform is entirely at Your own risk and You should use your best judgment and exercise caution while using the Platform and any content contained therein. Company makes no guarantee that your use of the Platform or Services, and all other features or functionalities associated with the Platform, or delivery of any Company Content will be uninterrupted, interference free, or error free, or be free from any viruses, worms, or other security intrusions. Company, to the fullest extent permissible by applicable law, disclaims all warranties, expressed or implied, written or oral, arising from a course of dealing, performance, usage of trade, or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement.
Company uses servers located in the United States of America. By accessing the Platform and/or using the Services, You consent that your personal data may be transferred and processed as required beyond the borders of your home country. YOU AGREE THAT THE LAWS OF THE UNITED STATES MAY BE LESS PROTECTIVE OF YOR PERSONAL INFORMATION THAN THOSE OF YOUR HOME COUNTRY REQUIRES. IF YOU DO NOT WANT YOUR INFORMATION TRANSFERRED TO THE UNITED STATES OF AMERICA, DO NOT USE OUR PLATFORM OR SERVICES. TO THE EXTENT ALLOWED BY THE LAW OF THE COUNTRY IN WHICH YOU ARE LOCATED, YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY HAVE TO REQUIRE US TO TREAT YOUR IDENTIFYING INFORMATION IN ACCORDANCE WITH THE LAWS OF ANY COUNTRY OR JURISDICTION OTHER THAN THE UNITED STATES OF AMERICA. THIS WAIVER MAY NOT BE LEGALLY BINDING IN SOME COUNTRIES (E.G. THE EUROPEAN UNION).
9.LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS, WHICH ARE IN ANY WAY RELATED TO USE OF THE PLATFORM, SERVICES,
CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE PLATFORM OR SERVICES, REGARDLESS OF LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, PERSONAL INJURY, PROPERTY DAMAGE, NEGLIGENCE, WARRANTY, OR STRICT LIABILITY), WHETHER OR NOT COMPANY, OR ITS AFFILIATES, HAVE BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to You. Notwithstanding the foregoing, under no circumstances will the total liability of Company, or its affiliates, in connection with, based upon, or arising from the Platform, Services, Content, or other materials found on or within the Platform or Service exceed one hundred dollars ($100.00 USD). If any part of this limitation of liability is found to be invalid or unenforceable for any reason, then the total liability of Company, and its affiliates, shall not exceed one hundred dollars ($100.00 USD). If you are dissatisfied with the Platform or Services, or in the event of any breach or alleged breach of these Terms by Company, , Your sole and exclusive remedy is to discontinue using the Platform and delete your Account.
You agree to indemnify Company, and its affiliates, designees, members, managers, directors, officers, employees, agents, attorneys, contractors and licensors (“Indemnified Parties”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with your use of the Platform or Services and/or content contained accessible via the Platform, your violation of the Terms, or your violation of any applicable law (such as the violation of a third party’s copyright rights) and You shall indemnify and hold the Indemnified Parties harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and legal costs) arising out of or incurred in connection with such Claims. This indemnification obligation shall survive these Terms and your use of the Platform and Services. Company reserves the right to take over the exclusive defense of Claims for which Company is entitled to indemnification, and in such an event, You shall provide reasonable cooperation to Company.
All legal notices pursuant to the Terms shall be in writing and shall be given by email to Company at: firstname.lastname@example.org and via mail to Cascade FM, LLC, 11 Hanover Square, 8th Floor, New York, NY 10005. By using the Platform or Services, You agree that any notice due under the Terms that Company sends you electronically will satisfy any legal communication or notification requirement.
- Governing Law. This Agreement, including all claims relating to or arising hereof or breach thereof, whether sounding in contract, tort, or otherwise, will be governed and construed in accordance with the laws of the state of New York, excluding its choice-of-law principles.
- Applicability of Section. The terms of this section 12 will apply to all disputes that may arise out of, are connected with, or relate to these Terms, the Platform or the Services, subject only to the following exceptions: (1) if Company reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to us or any third party, we may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Santa Clara County, California, provided that all claims by all parties in the dispute (i) fall within the jurisdiction of the small claims court, and (ii) were unsuccessfully resolved through the Informal Resolution procedure required in section 12(c) below. Furthermore, in no event will the terms of this section limit Company’s ability to investigate complaints or reported violations of these Terms, or to take any action we deem necessary and appropriate to mitigate actions against us, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties such as music rights-holders.
- Informal Resolution. If You have any dispute with us or any related third party, arising out of, relating to, or connected with these Terms or the Platform or Services, You agree to contact us directly and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account); and give us thirty (30) days from the date of filing your written description with us within which to resolve the dispute to Your reasonable satisfaction. Only if Company does not resolve the dispute through good faith negotiations under this informal process, may You pursue the dispute in accordance with the arbitration agreement provision in section 12(d) below.
- Arbitration Agreement. Any claims by You that are not resolved by the Informal Resolution procedure described in section 12(c) above, arising out of, relating to, or connected with these Terms must be asserted individually in binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel). These Terms and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of these Terms is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor join or consolidate claims by or for individuals; and (3) You hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided above) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding against us or related third parties arising out of, relating to, or connected with these Terms.
The arbitration proceeding and the results thereof will be kept confidential by each party and not used for any purpose other than a party exercising its rights and fulfilling its obligations with respect to the other party; provided, however that either party may disclose the existence and results of the proceeding: (1) as required by law, rule, or regulation; (2) to its accountants, attorneys, and other fiduciaries; and (3) to an arbitrator or third party who has exercised its rights under this section 12 for use as persuasive authority in other proceedings brought pursuant to this section 12.
- Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of, relating to, or connected with your use of the Platform or Services, must be filed within twelve (12) months of the date the facts giving rise to the suit were known or should have been known by You, or forever be barred.
13.CHOICE OF LAW
By accessing, viewing, or using the Platform or Services, You consent and agree that: (i) the Terms will be exclusively governed by the laws of the State of New York applicable to contracts entered into and performed within the State of New York and notwithstanding any conflict of law principles; (ii) You accept service of process by personal delivery or mail; and (iii) YOU IRREVOCABLY WAIVE
THE RIGHT TO TRIAL BY JURY AND ANY JURISDICTIONAL AND VENUE DEFENSES OTHERWISE AVAILABLE. Any dispute related to the Terms shall be exclusively resolved in the state and federal courts located in New York County, New York or the Southern District of New York. Any alleged claim or cause of action You may have with respect to your use of the Platform or Services must be commenced within one (1) year after the alleged claim or cause of action arises. All rights and remedies are cumulative and shall in no way affect any remedy available to either party under equity or law. You agree that any violation or breach of the Terms by You will result in irreparable harm to Company, that monetary damages will be inadequate, and you hereby agree Company shall be entitled to seek injunctive relief.
14.SPECIAL NOTICE TO CALIFORNIA RESIDENTS
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice which is hereby offered as a convenience to you:
The name, address of the provider of this Platform is CASCADE.FM, 11 Hanover Square, 8th Floor, New York, NY 10005. Complaints regarding the Platform or requests to receive further information regarding use of this Platform may be sent to the above address or to support@CASCADE.FM email.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
15.SUBMISSIONS AND FEEDBACK
Company welcomes submissions and feedback regarding the Platform, and You may submit comments to Company regarding the same by sending an email to Company at: email@example.com. Company strives to provide accurate descriptions of all Services found in or on the Platform, and encourages its users to provide accurate descriptions of all user-generated content found in or on the Platform; however, Company does not warrant the description of all Services and Content are complete, error-free, or accurate. Notwithstanding the foregoing, every attempt is made to provide you with complete, error-free, and accurate information. Company requests that such feedback be specific, not illegal, obscene, threatening, defamatory, or invasive of privacy, and that You do not voluntarily submit ideas or suggestions regarding the business of Company (collectively, the “Submissions”). If, despite this request, you do voluntarily submit Submissions to Company, the Submissions will be non-confidential and Company has the right to publish the Submissions publicly. You agree that Company will be deemed the exclusive owner of all Submissions, and in consideration of these Terms and access to the Platform, You assign all right and title in and to the Submissions to Company, and the Submissions will remain the exclusive property of Company, including, without limitation, exclusively owning any copyrights in and to the Submissions throughout the universe, in perpetuity. Company will be free to use the Submissions for any purpose whatsoever without any liability to you whatsoever. For the avoidance of doubt, the Submissions does not include any user-generated content.
The Terms are written in English (USA). Company may make these Terms available to You in languages other than English through third party translation services, such as Google Translate. Such translations of any materials into a language other than English are intended solely as a courtesy to You and for the convenience to non-English reading users. Company does not warrant or represent to the accuracy of any such translations, and You acknowledge that such translations may contain differences due to the difficulty in translating languages. You acknowledge and agree that the English (USA) version of the Terms found on the Platform shall be the controlling version of the Terms in the event of a discrepancy, and shall exclusively govern the entire relationship between Company and You.