PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: January 12, 2021
Welcome to heir. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at firstname.lastname@example.org.
We provide these Services to give you the ability to share your music and other Content with your audience, understand your audience, build connections with fans, and to express yourself on heir. You can learn more about the Services by visiting our website. You acknowledge that we provide these Services in exchange for your use of the Service and the provision of any materials displayed or performed or available on or through the Services, including, but not limited to, audio, song files, album art, text, graphics, data, articles, photos, images, illustrations, User Submissions (defined in Section 5 below), and so forth (all of the foregoing, the “Content”) to the Service and that others may be given access to certain Services.
We do not knowingly collect or solicit personally identifiable information from children under 13 (or older, if applicable law provides for different protections); if you are under 13 (or older, if applicable law provides for different protections), please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13 (or older, if applicable law provides for different protections), we will delete that information as quickly as possible. If you believe that a child under 13 (or older, if applicable law provides for different protections) may have provided us personal information, please contact us at email@example.com.
- Changes to these Terms
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the https://www.heir.fm and/or http://www.heir.fm website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
- Rights We Grant You
The Services and the Content are the property of Heir or Heir’s licensors. We grant you a limited, non-exclusive, revocable license to make use of the Services, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content and to use the Services for commercial use to promote your Content and personal brand as an artist to fans (the “License”). This License shall remain in effect until and unless terminated by you or Heir. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use or commercial use solely as permitted by these Terms, and that you will not redistribute or transfer the Services or the Content.
The Services and the Content are licensed, not sold, to you, and heir and its licensors retain ownership of all copies of the Services and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
All heir trademarks, service marks, trade names, logos, domain names, and any other features of the heir brand (“heir Brand Features”) are the sole property of heir or its licensors. These Terms do not grant you any rights to use any heir Brand Features whether for commercial or non-commercial use, and all goodwill generated from the use of any heir Brand Features will inure solely to heir.
You agree to abide by our User Guidelines in Section 7 and not to use the Service, the Content, or any part thereof in any manner not expressly permitted by the Terms. Except for the rights expressly granted to you in these Terms, heir grants no right, title, or interest to you in the Service or Content, by implication, estoppel or otherwise. All rights not granted to you are expressly reserved by heir.
You may be required to sign up for an account, and select a password and user name (“heir User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your heir User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
- Third Party Applications
The Service may be integrated with third party applications, websites, and services (“Third Party Applications”) to make content, products, and/or services available to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that heir does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that heir shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that heir is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release heir, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- User Submissions
Anything you post, upload, share, store, transmit, submit, exchange, make available to or otherwise provide through the Services is your “User Submission” and is owned by you, and not by heir. heir does not claim any ownership rights in Your User Submissions, and you hereby expressly acknowledge and agree that Your User Submissions remain your sole responsibility.
You promise that, with respect to any User Submission you post on heir, (1) you have the right to post such User Submission and to grant heir the rights to such User Submission as set forth in the Terms, (2) such User Submission, or its use by heir as contemplated by the Terms, does not violate the Terms, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Submission by heir or any other artist, band, label, entity or individual without express written consent from such individual or entity, (3) no royalties or other fees will be payable by heir to any third party for the reproduction, distribution, public display, public performance, creation of derivative works, or other use or exploitation of such User Submission, except as otherwise explicitly disclosed in writing by you to heir via an artist registration and upload dashboard and (4) all User Submission you submit to the Service is correct, accurate, and does not contain Objectionable Content (defined below in Section 7).
You must not upload, store, distribute, send, transmit, display, perform, make available, continue to make available or otherwise communicate to the public any Content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within Your User Submissions (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Services), independent of whether it is or becomes unauthorized at a later point, may constitute an infringement of third party rights and is strictly prohibited. Any such infringements may result in termination of your access to the Services as described herein, and may also result in civil litigation or criminal prosecution by or on behalf of the relevant right holder.
heir may, but has no obligation to, monitor, review, or edit User Submission. Because there is a risk to hosting user uploaded content, including User Submission, heir reserves the right, in all cases, to remove or disable access to any User Submission for any or no reason, including, but not limited to, User Submission that, in heir’s sole discretion, violates the Terms, the rights of any third party, poses a reputational risk to heir or any other person, or would cause heir to be in breach of any agreement to which heir is a party. heir may take these actions without prior notification to you or any third party and without any liability to you for such removal. However, heir does not obligate itself to remove any User Submission except as required by law.
You are solely responsible for all User Submission that you post, so please be careful about what you post. Don’t defame people on the Service. As you would expect, heir is not responsible for User Submission nor does it endorse any opinion contained in any User Submission. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST HEIR RELATED TO USER SUBMISSION THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LAW, YOU WILL INDEMNIFY AND HOLD HEIR HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF SUCH CLAIM AND/OR YOUR BREACH OF THE REPRESENTATIONS SET FORTH IN THE TERMS.
- Rights You Grant Us
In consideration in part for the rights granted to you under the Terms, you grant us the right (1) to allow the Service to use, as applicable, the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you and alongside any User Submission on the Service, and (3) to allow our business partners to do the same.
If you provide feedback, ideas or suggestions to heir in connection with the Service or Content (“Feedback”), then regardless of what your accompanying communication may say, you acknowledge that the Feedback is not confidential and that you grant heir a worldwide, non-exclusive, irrevocable, perpetual, royalty free and unlimited license to use your Feedback in any way, for any purpose, and through any medium or technology now known or hereafter created, whether in whole or in part, and whether as modified or unmodified. Feedback is considered a type of User Submission.
You grant heir a non-exclusive, transferable, sub-licensable, irrevocable (except as to music content), royalty-free (except as to music content), fully paid (except as to music content), worldwide license to use, reproduce, make available to the public (e.g., perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Submission solely as it appears on the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created, to present and make available your User Submission to users of heir and the Services, and in any and all marketing and promotional materials including but not limited to digital and print media, social media platforms, presentations, submissions, or any industry or commercial advertising purposes. You further grant us the non-exclusive, irrevocable, fully paid, worldwide right to use your name, likeness, and photograph on the Services and in our marketing communications to advertise, market and promote the availability of your User Submission on the Service.
Aside from the rights specifically granted in the Terms, you retain ownership of all rights, including intellectual property rights, in the User Submission that you post, and you have only granted us a license as set forth in the Terms. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law), such as your right to be identified as the author of any User Submission, and your right to object to derogatory treatment of such User Submission. If such moral rights are not waivable, then you at least agree not to sue us for failure to identify you as the author of any User Submission or for any use of your User Submission on the Services.
- User Guidelines
heir respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Service, to make sure heir stays enjoyable for everyone. The current rules are listed below, but these may be updated, or we may provide you with additional rules, from time to time, consistent with Section 2 above. Please follow these rules and encourage other users to do the same.
The following is not permitted for any reason whatsoever:
- copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Service or the Content, or otherwise making any use of the Service or the Content which is not expressly permitted under the Terms or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Service or the Content or any part of it;
- using the Service to import or copy any local files you do not have the legal right to import or copy in this way;
- transferring copies of cached Content from an authorized Device to any other Device via any means;
- reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Service, Content or any part thereof unless permitted by applicable law;
- circumventing any technology used by heir, its licensors, or any third party to protect the Content or the Service;
- selling, renting, sub-licensing or leasing of any part of the Service or the Content;
- circumventing any territorial restrictions applied by heir or it licensors;
- artificially increasing play count or otherwise manipulating the Services by using a script or other automated process;
- taking any action that imposes an unreasonable load on the Service;
- removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
- “crawling” the Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from heir;
- framing or linking to any of the materials or information available on the website or Service;
- deleting or altering any material heir or any other user makes available on the Service; or
- selling a user account or playlist, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.
Please respect heir, the owners of the Content, yourself, and other users of the Service. Don’t engage in any activity, post any User Submission, or register and/or use a username, which is or includes material that:
- would violate any agreement to which you are a party, such as, by way of example and not limitation, an exclusive recording agreement or publishing agreement;
- promotes any product, good or service for which you receive consideration of any form without making all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such Guides may be amended from time-to-time by the Federal Trade Commission (following this link for additional information);
- is offensive, abusive, defamatory, pornographic, threatening, obscene, or advocates or incites violence;
- is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of heir or a third party;
- includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
- includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;
- is intended to or does harass or bully other users;
- impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
- uses automated means to artificially promote content;
- involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the heir inbox;
- involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by heir;
- links to, references, or otherwise promotes commercial products or services, except as expressly authorized by heir;
- exposes confidential or proprietary information of a third party or personal information about yourself that you do not wish broadcast to people around the world;
- interferes with or in any way disrupts the Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or heir’s computer systems, network, usage rules, or any of heir’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or
- conflicts with the Terms, as determined by heir.
You agree that you will not assist or permit any person in engaging in any of the activities in Sections 7.1 through 7.29.
All content listed in Sections 7.1 through 7.29 is “Objectionable Content.” You acknowledge and agree that posting any such Objectionable Content may result in immediate termination or suspension of your heir account.
Please be thoughtful about how you use the Service and what you share, and especially how you interact with your fans on heir. The Service includes social and interactive features, including the ability to post User Submission, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on heir or across the web, and may live on in perpetuity once posted, so please use heir carefully and be mindful of your account settings. You will only use the Services for your own internal, personal, non-commercial use, or commercial use solely as permitted by these Terms, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. heir has no responsibility for your choices to post material on the Service.
The Services are currently free, but we reserve the right to charge for certain or all Services in the future. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
While you are currently paid for your User Submissions to the Services solely through SoundExchange, if at all, in the future, you may receive payments for certain types of your User Submissions. We will notify you of any changes in such payment terms.
- Infringement and Reporting User Submission
heir respects the rights of intellectual property owners. If you believe that any Content infringes your intellectual property rights or other rights, see heir’s Copyright Dispute Policy. If heir is notified by an intellectual property owner or their agent that any Content infringes a protected legal right, then heir may, in its absolute discretion, take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to heir with a request to restore the removed content.
- Term and Termination
The Terms will continue to apply to you until terminated by either you or heir. However, you acknowledge and agree that the perpetual license granted by you in relation to User Submission, including Feedback, is irrevocable and will therefore continue after expiration or termination of any of the Terms for any reason. heir may terminate the Terms or suspend your access to the Service at any time, including in the event of your actual or suspected unauthorized use of the Service and/or Content, or non-compliance with the Terms, without notice and without liability to you. If you or heir terminate the Terms, or if heir suspends your access to the Service, you agree that heir shall have no liability or responsibility to you to the fullest extent permitted under applicable law.
To learn how to terminate your heir account, please contact us at firstname.lastname@example.org. This section will be enforced to the extent permissible by applicable law. You may terminate the Terms at any time.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
- Warranty Disclaimer
Neither heir nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from heir or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY HEIR (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL HEIR (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO HEIR IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
- Third Party Rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Terms and have the right to enforce the Terms directly against you. Other than as set out in this section, the Terms are not intended to grant rights to anyone except you and heir, and in no event shall the Terms create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Terms are not subject to the consent of any other person.
These Terms apply to your use of all the Services, including the iPhone, iPad Touch, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- Both you and heir acknowledge that the Terms are concluded between you and heir only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, or commercial use solely as permitted by these Terms, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that heir, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, heir, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and heir acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
Both you and heir acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.]
- Severability and Waiver
Unless as otherwise stated in the Terms, should any provision of the Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Terms, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by heir or any third party beneficiary to enforce the Terms or any provision thereof shall not waive heir’s or the applicable third party beneficiary’s right to do so.
heir may assign the Terms or any part of them, and heir may delegate any of its obligations under the Terms. You may not assign the Terms or any part of them, nor transfer or sub-license your rights under the Terms, to any third party.
To the fullest extent allowed by applicable law, You agree to indemnify and hold heir, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
- Choice of Law; Arbitration
These Terms and your use of the Services will be interpreted in accordance with the law of the State of California and the United States of America, without regard to their conflict-of-law provisions. You and heir agree to submit to the personal jurisdiction of a state court located in Los Angeles County, California or a United States District court, Central District of California located in Los Angeles, California (collectively, the “Los Angeles Courts”) for any actions which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the heir may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and heir agree that these Terms are the complete and exclusive statement of the mutual understanding between you and heir, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of heir, and you do not have any authority of any kind to bind heir in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and heir agree there are no third party beneficiaries intended under these Terms.
- Dispute Resolution
Mandatory, Bilateral Arbitration and Waiver of Class Actions
Please read this carefully. It affects your rights. YOU AND HEIR AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF HEIR, TO ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH HEIR, TO THIS AGREEMENT, OR TO THE CONTENT, AND/OR USER SUBMISSION ON HEIR SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, except that (1) you may assert claims in small claims court if your claims qualify; and (2) this agreement to arbitrate does not include your or heir’s right to seek injunctive or other equitable relief in state or federal court in Los Angeles to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms.
“Disputes” shall include, but are not limited to, any claims or controversies between you and heir against each other related in any way to or arising out of in any way from the Service, the Content, User Submission, including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and heir, even if the claim arises after you or heir has terminated Service or a user account. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; or (b) that heir brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and heir, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (ii) claims that arose before these Terms or out of a prior set of Terms with heir; (iii) claims that are subject to on-going litigation where you are not a party or a class member; and/or (iv) claims that arise after the termination of these Terms.
Before initiating an arbitration, you and heir each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute should be sent to: Heir Apparent, Inc., Attention: Legal, 325 N. Larchmont Boulevard, Suite 300, Los Angeles, CA 90004 or emailed at email@example.com. heir will provide a Notice of Dispute to you via the email address associated with your heir User ID. You and heir agree to make attempts to resolve the Dispute prior to commencing an arbitration and not to commence an arbitration proceeding until this 45-day post-notice resolution period expires. If an agreement cannot be reached within 45 days of receipt of the Notice of Dispute, you or heir may commence an arbitration proceeding.
Arbitration Process and Procedure
Unless you and heir agree otherwise in writing, arbitration shall (1) be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures then in effect (the “JAMS Rules”) and as modified by this agreement to arbitrate, including the rules regarding filing, administration, discovery, and arbitrator fees; (2) be conducted by a single, neutral arbitrator; and (3) take place in the county where you reside. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class or representative action. Further, unless both you and heir expressly agree otherwise, the arbitrator may not consolidate more than one person’s claims. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
If, for any reason, a claim proceeds in court rather than in arbitration, we each waive our right to a jury trial.
YOU THEREFORE UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND HEIR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION FOR ANY CLAIMS COVERED BY THIS AGREEMENT.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
The JAMS Rules are available on its website at https://www.jamsadr.com/rules-streamlined-arbitration/. Notwithstanding any JAMS Rules to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern, you and heir each agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that only a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.
If your claim does not exceed $5,000, you and heir agree to waive an oral hearing by the arbitrator and the arbitration will be conducted solely on the basis of documents you and heir submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. To the extent an oral hearing is requested by you or heir, or deemed necessary by the arbitrator, you and heir agree that the hearing will be conducted telephonically or videographically.
An arbitrator’s award will be a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator’s decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
It is each parties’ responsibility to pay any JAMS filing, case management/administrative, and arbitrator fees as set forth in the JAMS Rules. If your claim for damages does not exceed $5,000, heir will pay all such fees unless the arbitrator finds that either the substance of your Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)).
Small Claims & Government Actions
As an alternative to arbitration, you or heir may resolve Disputes in a small claims court that has jurisdiction over your claim. These Terms and this arbitration agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against heir on your behalf.