SoftSpoken Studio Agreement Terms
SoftspokenATX Studios (referred in this Agreement as “us” and “we” “studio” and “SoftspokenATX”) reserves the right to revise this TOS in its sole discretion at any time and without prior notice to you other than by posting the revised TOS on the Site. Any revisions to the TOS are effective upon posting. The TOS will be identified as of the most recent date of revision.
1. Client agrees to pay for studio time at the rate in effect at the time of booking, and A nonrefundable deposit is required to confirm bookings. The required deposit amount is listed on the website and the invoice provided by the studio representative.
2. Softspoken Studios will provide studio time and the services agreed upon for the duration of time required by the Client. Any additional services, including, but not limited to, mixing, mastering, creating additional tracks, and adding to or modifying tracks done outside the agreed studio time will require additional fees.
3. Client is responsible for all monies owed to Softspoken Studio, and shall make payment according to the quote or invoice provided by the studio representative. Payments may be by cash, credit card, check or money order. Any additional charges incurred must be paid at the beginning of the recording session. Payment by check shall not be considered completed until the check has cleared the bank. Any checks returned for insufficient funds will incur an additional fee of twenty dollars ($20). The Client is responsible for any and all legal costs and attorney’s fees required to collect payment for any services rendered.
4. If the Client requires the service of session musicians or backup singers not offered by the Studio, the Client will be responsible for arranging for and paying said musicians or singers, independent of any arrangements through the Studio. If the Client requests the Studio to provide for session musicians the Studio will make arrangements for the Client. Client will still be responsible for payments associated with Studio session musicians and singers, through the Studio. The Studio will not be responsible for the failure of such 3rd party session musicians to show up for a session and miss their recording slot.
5. In the event of cancellation of a recording session or other scheduled service by Client, Client will forfeit the deposit.
6. If the Studio must cancel a session due to illness or other reasonable cause, the Studio will reschedule the session for the earliest available time consistent with the needs of the Client. In the event neither the Client nor the Studio can agree upon a date and time for a session, the Studio will refund the deposit. Such a cancelation must be made with reasonable notice (24 hours in advance is the recommended time frame).
7. Studio time includes setup time, breakdown time, and any breaks taken by the artist(s) or engineer. The engineer will be allowed a break up to 15 minutes every 2 hours to alleviate ear fatigue. The engineer will be allowed one 30-minute meal break for sessions lasting longer than eight (8) hours. All such time is on the clock.
* 8. The Studio shall endeavor to secure all recording media (all master tapes, final mixes, and other media and storage devices) owned by Client, and left or stored on studio premises, but the Studio is not responsible for loss or damage. In the event of loss to or damage of Client’s recording media due to willful negligence, Studio shall be responsible for replacement of no more than the value of the total replacement cost of the media (if owned by Client) and studio time to date devoted to said recording media.
9. Any of the Client’s recording media stored on premises shall not be released or final copies made for the Client or Client’s representative until all monies due Studio has been paid. If not paid within 30 days, the Client’s recording media left on premises shall become the property of Studio.
*10. The Client’s project files will be backed up to another hard drive after each recording session. Onsite hard drive storage will be maintained for one 48 hours after the last recording session. After that time, files may be permanently deleted unless other arrangements have been made. Files for ongoing projects booking time on a regular basis will not be deleted.
11. The Studio will allow the Client to back up sessions on a personal hard drive after each recording session.
12. Client shall be responsible for any loss or damage to Studio property incurred by the Client, employees of Client, guests of Client, or agents of Client, as a result of misuse, negligence, and or carelessness.
13. Client shall be responsible for obtaining all mechanical licenses for music for which the Client does not own the rights. All such licenses must be obtained prior to duplication and preferably before the Studio produces a master, if that master will be used for duplication. It is advantageous to assign ISRC codes for each recorded track, which should be embedded in the digital media when the master is produced. The Client shall be responsible for and shall pay the fees (if any) for obtaining such codes.
14. The Client shall abide by the Studio Rules, listed below. Disobedience of these rules by the Client or a guest of the Client will be ground for removal of said person or persons from the property, immediate termination of their recording agreement, and the possible loss of future use of the studio. In the event of termination of the recording agreement due to such causes, there will be no refund of monies paid by the Client. The Studio or its representative will have sole right to make such determination.
15. The Client releases the Studio from any harm or damage that may occur to any person in the Client’s party or to equipment belonging to the Client during their recording sessions, if such is not the direct result of the Studio’s intentional or reckless conduct.
16. The Client agrees to allow it’s name, photographic image, and/or musical samples to be used on the Studio’s website and/or for other promotional purposes. The Studio will not sell or allow downloads of the Client’s music without prior agreement.
17. Should any portion of this Agreement prove to invalid, illegal, or unenforceable, it should not affect the remainder of this Agreement. The laws of the State of Texas govern this Agreement. In the event of a disagreement between the parties regarding the performance of this Agreement, both parties agree to attempt first through mediation. Should mediation fail and should litigation arise between the parties, the prevailing party shall be compensated for whatever damages are awarded, plus reasonable attorney’s fees by the other party.
18. This constitutes the entire agreement between Client and Studio, and may not be modified, changed, or terminated in any way unless there is a written agreement signed by both parties.
Studio Code of Conduct
General
No unnecessary people are allowed in the recording studio during sessions unless agreed upon by studio manager.
All individuals in the studio are to respond to the direction of the head engineer, lead videographer, or studio manager.
No equipment is to be handled unless directed by staff.
Smoking and Alcohol
Absolutely no smoking is allowed in the studio or the property of SoftspokenATX.
No alcohol is permitted on the campus on which the studio is located. Therefore alcoholic beverages are not allowed in the studio or anywhere else on the grounds.
Illegal Substances
No illegal substances are allowed on the property. Any Client or guest of the Client found to be under the influence of any illegal substance or exhibiting any behavior deemed unprofessional by the Studio or its representative will be grounds for removal of said person or persons from the property and immediate termination of this agreement and possible loss of the future use of the studio. In the event of termination of this agreement due to such causes, there will be no refund of monies paid by the Client. The Studio or its representative will make the final judgment in such situations.
Food and Drink
Although food and drinks are allowed in the Control Room, please use them in reasonable quantities. Drinks should be in enclosed containers. Any spills that cause damage to the building or equipment will be to be billed to the Client.
Trash
Please help us keep the area neat and orderly. Do not leave food or trash around the facilities or in the studio. Please clean up any mess that you make. Place all trash in the appropriate containers.
Explicit Content
The Studio can reject recording or filming explicit content at the discretion of it's representatives.
19. Softspoken Service. Softspoken provides a number of Internet-based services and products through the Site (all such services, collectively, the "Recording Service" and “Products”).
20. Use of the Site and Softspoken Service.
(a) Eligibility. Softspoken will only knowingly provide the studio service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the recording Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Softspoken ATX Service is not intended for children under the age of 13.
(b) Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Studio Service and the Site.
(c) Your License to Use the Site and the Recording Services.
(21) Softspoken and its licensors solely and exclusively own all intellectual property and other right, title and interest in and to the recording Service and Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise.
(22) Softspoken grants you a limited revocable license to access and use the Site and the Recording Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by Softspoken; create derivative works based on the Products or any third party content available via the Site; or download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breach this TOS, Softspoken may revoke the license granted to you.
(d) Third-Party Services. Softspoken may use third parties to provide certain services accessible through the Site. Softspoken does not control those third parties or their services, and you agree that Softspoken will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as these TOS when you use these services. If any such terms or policies conflict with Softspoken’s TOS, agreements or policies, you must comply with Softspoken's TOS, agreements or policies, as applicable.
23. Rules for Use Of the Site.
(a) Prohibited Use. Except as may be expressly permitted by Softspoken ATX, you may not: (i) interfere with the Softspoken ATX Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Softspoken ATX Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Softspoken ATX Service; (v) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain Softspoken ATX's name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the Softspoken ATX Service; or (ix) assist or encourage any third party in engaging in any activity prohibited by these TOS.
(b) Privacy Policy. By entering into these TOS, you agree to Softspoken ATX's collection, use and disclosure of your personal information in accordance with the Softspoken ATX Privacy Policy, found here: http://www.jurnt.com/privacy.
(c) Ordering Products. If you purchase Products, you agree to do so in accordance with Softspoken ATX's Customer Bill of Rights below. Title to Products that you buy will pass to you upon delivery of the Products to the common carrier.
* If you need to cancel your order, contact Customer Service by email: studio@softspokenatx.com.
(d) Monitoring. Softspoken ATX reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site. If Softspoken ATX determines, in its sole and absolute discretion, that you or another Softspoken ATX user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Softspoken ATX may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
(e) Modification of the Service. Softspoken ATX may modify the Softspoken ATX Service at any time with or without notice to you, and will incur no liability for doing so.
24. Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant Softspoken ATX permission to use such submissions for marketing and other promotional purposes. You agree that Softspoken ATX will have no obligation to keep any Submissions confidential and you will not bring a claim against Softspoken ATX based on "moral rights" or the like arising from Softspoken ATX' use of a Submission.
25. Representations and Warranties.
(a) Mutual Representations and Warranties. You represent and warrant to Softspoken ATX and Softspoken ATX represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
(b) By You. You represent and warrant to Softspoken ATX that, in your use of the Softspoken ATX Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Softspoken ATX that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) Softspoken ATX will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that Softspoken ATX incurs in providing the Softspoken ATX Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
26. Disclaimers, Exclusions, and Limitations.
(a) DISCLAIMER OF WARRANTIES. Softspoken ATX PROVIDES THE SITE AND Softspoken ATX SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Softspoken ATX DOES NOT REPRESENT OR WARRANT THAT THE SITE, Softspoken ATX SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. Softspoken ATX MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
(b) EXCLUSION OF DAMAGES. Softspoken ATX WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE Softspoken ATX SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY Softspoken ATX TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
27. Indemnification. You will indemnify and hold Softspoken ATX and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS. If you have to indemnify Softspoken ATX under this Section, Softspoken ATX will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Softspoken ATX' express written permission.
28. Termination.
(a) Termination. Softspoken ATX may suspend or terminate your use of the Site or Softspoken ATX Service if it believes that, in its sole and absolute discretion, you have breached a term of these TOS.
(b) Survival. These TOS will survive indefinitely unless and until Softspoken ATX chooses to terminate them.
(c) Effect of Termination. If you or Softspoken ATX terminates your use of the Site or the Softspoken ATX Service, Softspoken ATX may delete any Submissions or other materials relating to your use of the Softspoken ATX Service on Softspoken ATX' servers or otherwise in its possession and Softspoken ATX will have no liability to you or any third party for doing so.
29. Notice. All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Softspoken ATX, you must use the following addresses: Softspoken ATX at studio@softspokenatx.com. If Softspoken ATX provides notice to you, Softspoken ATX will use the contact information provided by you to Softspoken ATX. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
30. Dispute Resolution.
(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND Softspoken ATX AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Softspoken ATX, to you via any other method available to Softspoken ATX, including via e-mail. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Softspoken ATX do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Softspoken ATX may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AGENT OF Softspoken ATX IN ACCORDANCE WITH COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. If you are required to pay a filing fee to commence an arbitration against Softspoken ATX, then Softspoken ATX will promptly reimburse you for your confirmed payment of the filing fee upon Softspoken ATX receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Softspoken ATX agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND Softspoken ATX AGREE THAT YOU AND Softspoken ATX MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of Texas in conducting the arbitration. You acknowledge that this Agreement and your use of the Services and the Website evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and your use of the Services and the Website shall be governed by the substantive laws of the State of Texas without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Softspoken ATX under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas, and you and Softspoken ATX hereby submit to the personal jurisdiction and venue of these courts.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Softspoken ATX seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Softspoken ATX or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Softspoken ATX, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. You and Softspoken ATX agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the Services or the use of the Website, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(i) Improperly Filed Claims. All claims you bring against Softspoken ATX must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Softspoken ATX may recover attorneys’ fees and costs up to $5,000, provided that Softspoken ATX has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
31. Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) Softspoken ATX respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or the Softspoken ATX Service.
(b) Softspoken ATX’ intellectual property policy is to (1) remove material that Softspoken ATX believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” Softspoken ATX considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Service and for whom Softspoken ATX has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such Products or Submissions. Softspoken ATX has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Softspoken ATX’ own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or the Softspoken ATX Service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Softspoken ATX to locate the material;
(iv)Information reasonably sufficient to permit Softspoken ATX to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
(d) Designated Agent Contact Information. Softspoken ATX’s Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail : studio@softspokenatx.com
(e) Counter Notification. If you receive a notification from Softspoken ATX that material made available by you on or through the Site or the Softspoken ATX Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Softspoken ATX with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Softspoken ATX’s Designated Agent through one of the methods identified in Section 11(d) of this TOS, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Softspoken ATX may be found, and that the subscriber will accept service of process from the person who provided notification under Section 11(c) of this TOS above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
(f) False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Softspoken ATX] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f). Softspoken ATX reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 11 should be sent to the Designated Agent at the e-mail or postal address set forth above. Any other comments, compliments, complaints or suggestions about Softspoken ATX, the operation of the Site or the Softspoken ATX Service or any other matter should be sent to info@Softspoken ATX.com.
32. Miscellaneous. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Softspoken ATX. Softspoken ATX may freely assign or transfer any rights granted by you to Softspoken ATX under these TOS. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Softspoken ATX are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect. The headings used in this TOS are for convenience only, do not constitute a part of this TOS, and shall not be deemed to limit or affect any of the provisions hereof.