Terms of Service

Last updated: April 30, 2025

Welcome to Tunesimo! These Terms of Service (the “Terms”) govern your access and use of the website  https://tunesimo.com/ (including both mobile and online versions) (the “Site”) operated by Capp Inc. (“Capp”) and any interactive features, widgets, plug-ins, applications, content, downloads and/or other online services that we own or control and that post a link to these Terms (collectively with the Site, the “Services”). By using the Services, you acknowledge and accept the Privacy Policy and consent to the collection and use of your data in accordance with our Privacy Policy .

These Terms apply to all users, including subscribers, customers, and visitors. Please read these Terms carefully before using the Services, as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Services (other than to simply read these Terms), you agree to be bound by and comply with these Terms then posted.

In some instances, both these Terms and separate guidelines, rules or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Services or to a service or product offered via the Services (in each instance, and collectively, “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

  1. Access to Our Online Services and Tools.

No one under thirteen (13) years of age is allowed to create an account or use the Service.  You may be required to register for an account to access certain features of the Services. By registering for an account you agree that (i) you will not use an e-mail address that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive, (ii) you will provide true, accurate, current and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current and complete, (iii) you are responsible for maintaining the confidentiality of your account information and agree to notify us immediately of any unauthorized use of your account, (iv) you are responsible for all activities that occur under your account, password, and e-mail address – whether or not you authorized the activity, and (v) you will not sell, transfer, or assign your account or any account rights. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may immediately suspend or terminate your account. By creating an account, you agree to receive communications related to your subscription or services from us.

  1. Access to Features of Our Site and Services.

The Services contain a variety of (i) materials and other items relating to Capp and our products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, illustrations, photographs, music, sounds, pictures, videos, advertising copy, URLs, technology, software, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material (including source and object code), (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identifies of various parties, including those of Capp (collectively, “Trademarks”), and (iii) other forms of intellectual property (collectively, “Content”). We own or have licenses to all Content. We grant you a limited, non-exclusive, non-transferable, non-assignable, personal, and revocable license to download, display, view, access and/or use the Content for personal, non-commercial purposes, subject to compliance with these Terms and any Additional Terms. The foregoing limited license does not give you any ownership of, or any other intellectual property interest in, any Content, and may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability.

  1. General Restrictions on Use.
  1. You agree that you will not: (i) use the Services for any political purpose; (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Services that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Capp; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Services source or object code or any software or other products, services, or processes accessible through any portion of the Services; (v) use the Services or Content to train, manipulate, service or otherwise engage with machine learning or any other artificial intelligence algorithm; (vi) use the Services to buy or sell securities for the benefit for anyone other than yourself; (vii) use the Services in any manner that would: (a) manipulate or attempt to manipulate the public trading markets; (b) manipulate or attempt to manipulate the price of any individual security; or (c) violate any applicable securities laws; (viii) engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services, or otherwise causes harm to the Services, Capp, or other users of the Services; (ix) interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services or Content; (x) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Services, including email addresses, without the express consent of such users); (xi) attempt to gain unauthorized access to the Services, other computer systems or networks connected to the Services, through password mining or any other means; (xii): (a) use false or deceptive identities, names or accounts; (b) deploy or otherwise use bots, malware, viruses or scrapers; (c) engage in any activities that are designed to defraud or game Capp or third parties; or (d) deploy, or permit any third party to deploy, any technology on, or in connection with, Capp or Capp branded sites, systems or services that can enable the tracking of site or service activities or users, except with Capp’s prior express written approval; or (xiii) otherwise violate these Terms or any Additional Terms.
  2. You also agree that, in using the Services: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Services by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) except provided in these Terms or otherwise specified in any other written agreement between you and Capp, you will not make any modifications to such Content, nor use the Services, or Content in a manner not intended by these Terms; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Capp or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
  1. Ownership.

The Services (including past, present, and future versions) and the Content are owned or controlled by Capp, our licensors and/or certain other third parties.  All right, title, and interest in and to the Content available via the Services is the property of Capp or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.  Capp owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services.

  1. User-Generated Content.
  1. General.  By submitting any content (including but not limited to reviews, comments, videos, or images) (“User-Generated Content”) to us, you grant us a non-exclusive, royalty-free, perpetual, and irrevocable license to use, reproduce, distribute, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content in any media. You represent that you have the necessary rights to share such User-Generated Content with us. Except as otherwise described in our Privacy Policy or any Additional Terms, you agree that: (i) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (ii) Capp does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.  Upon Capp’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that creation and submissions of User-Generated Content may not be secure, and you will consider this before creating or submitting any User-Generated Content and do so at your own risk.  Capp has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Capp’s sole cost and expense, to which you hereby consent and irrevocably appoint Capp as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
  2. Usage Rules.  As a user of the Services, these  usage rules (“Rules”) are here to help you understand the conduct that is expected of  users of the Services.
  1. Nature of Rules.  Your use of the Services is subject to all of the Terms, including these Rules:

If you create or submit User-Generated Content that Capp reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion.  However, we are not obligated to take any action not required by law.  We may require, at any time, proof of the permissions referred to above in a form acceptable to us.  Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Services. 

  1. Other Users.

You are solely responsible for your interaction with other users of the Services, whether online or offline.  We are not responsible or liable for the conduct or content of any user.  We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.

  1. Terms Applicable to Purchases and/or Subscriptions.
  1. Generally. To purchase subscriptions we make available for sale on the Services or other products and services, you must be at least thirteen (13) years of age and have a credit or debit card or your parent’s permission to use a credit card. Prior to the purchase of any products or services, you must provide us with: (i) a valid credit card number and associated payment information including all of the following: (1) your name as it appears on the card, (2) your credit card number, (3) the credit card type, (4) the date of expiration, and (5) any activation numbers or code needed to charge your card. By submitting that information to us or our third party payment processor, you agree that you authorize us and/or our processor to charge your card or debit your account at our convenience but within thirty (30) days of such authorization.  For any product or service that you order on the Services, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order.  Capp will automatically bill your credit card or other form of payment submitted as part of the order process for such price. The timing and amount of each subscription depends on the type of subscription plan you enter into with us.  You can see the details as you join, as well as in the receipt sent to you after each successful payment.  You can view all your active paid subscriptions and billing history on your account page.
  2. Subscription Term and Auto-Renewal.  Your subscription will continue in full force for the length of the term you specifically purchased (e.g., month-to-month, quarterly, annual, multi-year, etc.) until such time as you cancel the subscription as further explained below (the “Subscription Term”). Your subscription will automatically renew at the end of your Subscription Term continuously and indefinitely without action by you, and the applicable fee is charged to you at the time of renewal. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term, and any applicable taxes and service fees (the “Fees”).  The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription or your account is suspended or terminated pursuant to these Terms. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale.  The rate for the renewal Subscription Term will be the then current subscription-rate.  The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan, subscription rates or applicable taxes, and you authorize Capp to charge your payment method for these amounts.  You agree that Capp reserves the right to change the pricing we charge you for your subscription and any products/services offered in your subscription package at any time.  In the event of a price change, Capp will post the new pricing on the Services and attempt to notify you in advance by sending an email to the address you have registered for your account.  If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise if you have not responded within 10 days of receipt of such email, your access to the Services will be suspended until such time you have agreed to the pricing changes or have otherwise come to an agreement with Capp.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you.  If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify Capp within sixty (60) days after they first appear on an account statement.
  3. Cancellation. You may cancel your monthly subscriptions any time after the first month. If you cancel a monthly subscription after you are billed, you will entitled to continue to use the Services for the remainder of that month. You can cancel any other subscriptions by updating your account settings to have the renewal feature turned “off”. This will mean that after the current prepaid Subscription Term is complete, it will not renew. Subscriptions cannot be cancelled in the middle of a prepaid Subscription Term. To avoid being charged for the next Subscription Term, please ensure your cancellation request is submitted before the billing date. All cancellation requests can be made through your account page.
  4. Products and Pricing. We make every effort to display as accurately as possible the features, specifications, and details of the products and services available on the Site. However, we do not guarantee that the features, specifications, and details of each product or service will be accurate, complete, reliable, current, or free of other errors. PRODUCTS AND SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE DISCONTINUED AT ANY TIME. CAPP RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVELY UPON YOUR CONSENT.  In the event that you do not accept the new pricing, you may move to a different subscription plan or terminate the Services at no additional cost to you.
  5. Promotions. From time to time, we may offer promotional discounts or offers. These promotions may be subject to Additional Terms and may not be combined with other offers unless specified.
  1. Notices and Questions.

You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Site, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you.  You agree to promptly notify us if you change your email or mailing address by updating your account information.

If you have a question regarding using the Services, you may contact us at [email protected].  You acknowledge that the provision of customer support is at Capp’s sole discretion and that we have no obligation to provide you with customer support of any kind.

  1. Linked-To Websites; Advertisements; Dealings with Third Parties.
  1. Linked Services; Advertisements.  The Services may contain links, as part of third-party ads on the Services or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with Capp.  Capp may have no control over the content, operations, policies, terms, or other elements of Linked Services, and Capp does not assume any obligation to review any Linked Services.  Capp does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, Capp is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services.  Finally, Capp will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, gross negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.  Capp disclaims all liability in connection therewith.
  2. Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Services (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  Capp disclaims all liability in connection therewith.
  1. Procedure For Alleging Copyright Infringement.
  1. DMCA Notice.  Capp will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below.  If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

(i)         a legend or subject line that says: “DMCA Copyright Infringement Notice”;

(ii)         a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii)         a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Services on which the material appears);

(iv)         your full name, address, telephone number and email address;

(v)         a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi)         a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii)         your electronic or physical signature.

Capp will only respond to DMCA Notices that it receives by mail, email or facsimile at the addresses below:

By email: [email protected]

        

It is often difficult to determine if your copyright has been infringed.  Capp may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Capp may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.  

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work.  That person may elect to send us a DMCA Counter-Notification.

Without limiting Capp’s other rights, Capp may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Capp.

  1. Counter-Notification.  If access on the Services to a work that you created or submitted to Capp is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above.  Your DMCA Counter-Notification should contain the following information:

(i)        a legend or subject line that says:  “DMCA Counter-Notification”;

(ii)        a description 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 (please include the URL or page of the Service from which the material was removed or access to it disabled);

(iii)        a statement under penalty of perjury that you have 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;

(iv)        your full name, address, telephone number, e-mail address, and the username of your account;

(v)        a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi)        your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification.  However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service.  You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

  1. Procedure For Alleging Infringement of Other Intellectual Property.

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Services, then you may send us an email to [email protected] that includes all of the following:

(i)        a legend or subject line that says:  “Intellectual Property Infringement Notice”;

(ii)        a description of the intellectual property that you claim has been infringed;

(iii)         a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Services on which the material appears);

(iv)         your full name, address, telephone number and email address;

(v)         a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

(vi)         a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(vii)         your electronic or physical signature.

We will act on such notices in our sole discretion.  Any user of the Services that fails to respond satisfactorily to Capp with regard to any such notice is subject to suspension or termination.  We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

  1. Dispute Resolution.

Certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and Capp agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act.

  1. First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Services, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, a “Dispute”), or to any of Capp’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 12.4), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such information exists or if such information is not current, then we have no obligation under this Section 12.1.  Your notice to us must be sent via email to [email protected].  For a period of sixty (60) days from the date of receipt of notice from the other party, Capp and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Capp to resolve the Dispute or Excluded Dispute on terms with respect to which you and Capp, in each of our sole discretion, are not comfortable.
  2. Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 12.1 (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND CAPP (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT—INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT NEGLIGENCE OR GROSS NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICES OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICES.  For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Capp and you regarding these Terms (and any Additional Terms) and the Services, including the “No Class Action Matters” Section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  Capp and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 12.8  below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Capp regarding these Terms and the Services, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Capp consent to in writing.  If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in New York, New York.  You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Capp to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then Capp will have the right to elect to pay the fees and costs and proceed to arbitration.  The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  This arbitration provision shall survive termination of these Terms or the Services.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

  1. Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12.1) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 12.1; (b) filing for arbitration as set forth in Section 12.2; or (c) filing an action in state, Federal or provincial court.
  2. Injunctive Relief.  The foregoing provisions of this Section 12 will not apply to any legal action taken by Capp to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Content, your User-Generated Content and/or Capp’s intellectual property rights (including such Capp may claim that may be in dispute), Capp’s operations, and/or Capp’s products or services.
  3. No Class Action Matters.  YOU AND CAPP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.  Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12.2 to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 12.6.  Notwithstanding any other provision of this Section 12, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.
  4. Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in New York County, New York.  Accordingly, you and Capp consent to the exclusive personal jurisdiction and venue of such courts for such matters.
  5. Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
  6. Governing Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions.
  1. DISCLAIMER.

YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK.  THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, Capp, its affiliates and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “Capp Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

(i)         the Services (including the Content and the User-Generated Content);

(ii)         the functions, features, or any other elements on, or made accessible through, the Services;

(iii)         any products, services, developer code or instructions offered or referenced at or linked through the Services;

(iv)         any information regarding investment or trading in any securities;

(v)        security associated with the transmission of your User-Generated Content transmitted to Capp via the Services;

(vi)         whether the Services or the servers that make the Services available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device);

(vii)         whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely, or reliable;

(viii)        whether any defects to, or errors on, the Services will be repaired or corrected;

(ix)        whether your access to the Services will be uninterrupted;

(x)         whether the Services will be available at any particular time or location; and

(xi)        whether your use of the Services is lawful in any particular jurisdiction.  

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A CAPP PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CAPP PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

THE SERVICES ARE FOR YOUR INFORMATIONAL, EDUCATIONAL, AND ENTERTAINMENT USE ONLY. NOTHING CONTAINED IN THE SERVICES OR YOUR USER-GENERATED CONTENT IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR FINANCIAL OR ANY OTHER PROFESSIONAL ADVICE AND YOU AGREE NOT TO USE THE SERVICES FOR SUCH PURPOSES.  CAPP IS NOT A BROKER-DEALER AND THE SERVICES OFFERED DO NOT CONSTITUTE INVESTMENT ADVICE OR GUIDANCE.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

  1. LIMITATIONS OF OUR LIABILITY.

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY CAPP PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:

(i)         the Services (including the Content and the User-Generated Content);

(ii)         your use of or inability to use the Services, or the performance of the Services;

(iii)         your use of any information regarding investment or trading in any securities;

(iv)        any action taken in connection with an investigation by Capp Parties or law enforcement authorities regarding your access to or use of the Services;

(v)         any action taken in connection with copyright or other intellectual property owners or other rights owners;

(vi)         any injury or damages you sustain directly or indirectly as a result of your use of the Services or any Videos;

(vii)        any errors or omissions in the Services’ technical operation; or

(viii)         any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

You further acknowledge and agree that trading and investing in securities involves significant risks, including the risk of loss of capital, and that past performance is not indicative of future results. You understand and agree that any trading decisions made based on the Services and/or the Content are made at your own risk. You understand and agree that Capp makes no guarantees regarding the accuracy or completeness of the Services and/or the Content, and that any investment decisions made by you are based solely on your  own judgment.  You expressly waive, release, and discharge Capp, its affiliates, employees, and agents from any and all claims, liabilities, losses, damages, costs, or expenses (including attorney fees) arising from or related to your use of the Services and/or the Content provided, including but not limited to any losses incurred in securities trading or investing

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Capp Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, gross negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence gross negligence,, acts of god, telecommunications failure, or destruction of the Services).  

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.  

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CAPP PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID CAPP TO ACCESS THE SERVICES OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

  1. Updates to Terms.

These Terms (or any applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICES EVOLVE, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICES UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Services (at least prior to each transaction or submission).  The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the Services will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice.  You can reject any new, revised or Additional Terms by discontinuing use of the Services and related services.

  1. General.
  1. Term and Termination.  These Terms remain in effect until terminated by either you or us. You may terminate your account at any time by following the instructions on the Site. We reserve the right to suspend or terminate your account or access to the Services for violation of these Terms, any Additional Terms, and as otherwise set forth herein.  We reserve the right not to renew any subscriptions for any reason in our sole discretion.
  2. Capp’s Consent or Approval.  As to any provision in these Terms or any Additional Terms that grant Capp a right of consent or approval, or permits Capp to exercise a right in its “sole discretion,” Capp may exercise that right in its sole and absolute discretion.  No opt-in consent or approval may be deemed to have been granted by Capp without being in writing and signed by an officer of Capp.   
  3. Indemnity.  You agree to, and you hereby, defend, indemnify, and hold Capp Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Capp Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Services and your activities in connection with the Services; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (v) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Capp Parties’ use of the information or content that you create through the Services or submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by Capp Parties in the defense of any Claims and Losses.  Notwithstanding the foregoing, Capp Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  Capp Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Capp Party.
  4. Operation of Service; Availability of Products and Services; International Issues.  The Services are operated in the United States, and is primarily intended for users located in the U.S.  Capp makes no representation that the Services are appropriate or available for use beyond the U.S.  If you use the Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  We reserve the right to limit the availability of the Services and/or the provision of any content, program, product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
  5. Entire Agreement; Severability; Interpretation. These Terms, together with our Privacy Policy, any Additional Terms, and any other policies referenced herein, constitute the entire agreement between you and  Nota Bene Entertainment, LLC regarding your use of the Services.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation”.  The section headings are provided for convenience only and shall not limit the full Terms.
  6. Communications.  As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. These messages may include updates, promotions, or other relevant information.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. 
  7. Investigations; Cooperation with Law Enforcement; Termination; Survival.  Capp reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Services security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Capp in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Services, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to Capp under these Terms or any Additional Terms.  Upon suspension or termination of your access to the Services, or upon notice from Capp, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Services.  The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Capp in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
  8. Assignment.  Capp may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Capp. 
  9. No Waiver.  Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Capp in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  For avoidance of doubt, nothing herein shall be construed to restrict Capp’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
  10. Connectivity.  You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.