Last Updated: January 23, 2024
Welcome, and thank you for your interest in WavTool, Inc. (“WavTool,” “we,” or “us”) and our website at www.wavtool.com (the “Website”), along with our related hosted applications, downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and WavTool regarding your use of the Service.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 19 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND WAVTOOL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. WavTool Service Overview. The Website provides a platform that allows artists, musicians, producers, and other creators to practice, collaborate, and produce music (the “Platform”) using a suite of artificial intelligence tools, including tools that assist with composing, producing, mixing, and mastering (the “AI Tools”). Users can upload songs and other media to the Platform, use the AI Tools to modify the uploaded content, and then export the resulting work product from the Platform. The Platform and AI Tools are part of the Service.
2. Music Consumption. The Service is provided for musicians and artists to create music and collaborate on the creation of music and is not intended for the passive consumption of music. WavTool may, in its sole discretion, suspend or terminate the accounts of any user that is using or accessing the Service for the primary purpose of music consumption.
3. Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) if you are 13 to 17 years of age, your parent or guardian has affirmatively consented to your access to and use of the Service; (c) you have not previously been suspended or removed from the Service; and (d) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company (an “Organization”), the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
4. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
5.1. Price. WavTool reserves the right to determine pricing for the Service. WavTool will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our Pricing Page periodically for current pricing information. WavTool may change the fees for any feature of the Service, including additional fees or charges, if WavTool gives you advance notice of changes before they apply. WavTool, at its sole discretion, may make promotional offers with different features and different pricing to any of WavTool’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
5.2. Authorization. You authorize WavTool to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by WavTool, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then WavTool may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5.3. Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize WavTool or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our Pricing Page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service at least 24 hours before it renews in order to avoid billing of the next periodic Subscription Fee to your account. WavTool or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by navigating to “manage my subscription” or by contacting us at email@example.com. Your cancellation must be received AT LEAST 24 HOURS BEFORE THE renewal date in order to avoid charge for the next subscription period.
5.4. Delinquent Accounts. WavTool may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then WavTool reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
6. Beta Trials. WavTool may, at its sole discretion from time to time, add new features to the Service that may be described as “Beta” features or services (collectively, “Beta Features”). These Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to these Beta Features as well. Beta Features may include partially functional or non-functional features of the Service, and use of Beta Features also authorizes WavTool access to your usage data for product development research and analysis. You acknowledge that access to Beta Features is optional, and if you elect to use a Beta Feature, you agree to do so at your own risk. WavTool may terminate Beta Features at any time, without warning, and without any liability to you.
7.1. Limited License. Subject to your complete and ongoing compliance with these Terms, WavTool grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any downloadable application associated with the Service on a device that you own or control; and (b) access and use the Website and Platform.
7.2. WavTool Generated Content. You can use the AI Tools offered through the Platform to generate lyrical suggestions, words, phrases, chords, rhymes, processed sounds, lines, and metadata (“WavTool Generated Content”). Subject your compliance with these Terms, WavTool hereby assigns to you all of its rights, title, and interest (if any) in and to the WavTool Generated Content resulting from your use of the AI Tools. The AI Tools may provide the same or similar WavTool Generated Content to other users, and WavTool’s assignment to you in the preceding sentence does not apply to the WavTool Generated Content resulting from other users’ use of the AI Tools. You agree that we may use WavTool Generated Content to (a) provide, maintain, develop, protect and improve the Service or our other products and services, (b) comply with applicable law, and (c) enforce these Terms and any Additional Terms (defined below). You are solely responsible for your use of any WavTool Generated Content.
7.3. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
7.4. Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant WavTool an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
8. Ownership; Proprietary Rights. The Service is owned and operated by WavTool. The Platform, AI Tools, and visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by WavTool (“Materials”) are protected by intellectual property and other laws. For clarity, Materials excludes the WavTool Generated Content resulting from your use of the AI Tools, which, as between you and WavTool, is owned by you. All Materials included in the Service are the property of WavTool or its third-party licensors. Except as expressly authorized by WavTool, you may not make use of the Materials. There are no implied licenses in these Terms and WavTool reserves all rights to the Materials not granted expressly in these Terms.
9.2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
10.1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Upload”) content to the Service, including messages, reviews, photos, video, or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Upload to the Service, subject to the licenses granted in these Terms. However, you acknowledge and agree that if you are an employee of an Organization, the applicable Organization may own the rights to that User Content.
10.2. Limited License Grant to WavTool. By Uploading User Content to or via the Service, you grant WavTool a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed, for use in connection with the Service and WavTool’s (and its successors’ and/or affiliates’) businesses, including for promoting and redistributing all or part of the Service in any media formats and through any media channels. If you Upload User Content to the Service, you hereby grant WavTool the right to use the data, content, and information derived from the User Content to provide and improve the Service, including to train our algorithms through machine learning and for what is commonly referred to as “generative artificial intelligence” purposes. You agree that WavTool may aggregate your data with the data of other WavTool users for such purposes. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Uploaded or otherwise used on external services via the Service. You agree to pay all monies owing to any person or entity resulting from Uploading your User Content and from WavTool’s exercise of the license set forth in this Section.
10.3. Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and have granted non-exclusive rights to a Performing Rights Organization (“PRO”), then you must notify your PRO of the royalty-free license you grant through these Terms to WavTool. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher or a PRO, then you must obtain the consent of that music publisher or PRO to grant the royalty-free license(s) set forth in these Terms or have that music publisher or PRO enter into these Terms with WavTool. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant WavTool the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you have to your record label, including if you create any new recordings through the Service that may be claimed by your label. Finally, if you wish to perform a cover song and Upload it to the Service, you are responsible for securing all rights in and to the underlying musical work before Uploading your recording or performance of that musical work to the Service.
10.4. You Must Have Rights to the Content You Upload; User Content Representations and Warranties. You must not Upload User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. WavTool disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
10.5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Upload and will not be in any way responsible or liable for User Content. WavTool may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against WavTool with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, WavTool does not permit infringing activities on the Service.
11. Email Communications. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
13. Intellectual Property Rights Protection
13.1. Respect of Third-Party Rights. WavTool respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
13.2. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
WavTool, Inc. Attn: Sam Watkinson, 651 N Broad St Suite 201 Middletown, DE 19709 Phone: (236) 705-5062 Email: firstname.lastname@example.org
13.3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
Your Notification of Claimed Infringement may be shared by WavTool with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to WavTool making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
13.4. Repeat Infringers. WavTool’s policy is to: (a) remove or disable access to material that WavTool believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. WavTool will terminate the accounts of users that are determined by WavTool to be repeat infringers. WavTool reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
13.5. Counter Notification. If you receive a notification from WavTool that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide WavTool with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to WavTool’s Designated Agent through one of the methods identified in Section 13.2 (DMCA Notification), and include substantially the following information:
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.
13.6. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to WavTool in response to a Notification of Claimed Infringement, then WavTool will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that WavTool will replace the removed User Content or cease disabling access to it in 10 business days, and WavTool will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless WavTool’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on WavTool’s system or network.
13.7. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) 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, will 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 WavTool 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.” WavTool reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
14. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 14 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
15.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2 (Termination).
15.2. Termination. If you violate any material provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, WavTool may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by navigating to your account settings on the Service or by contacting us at email@example.com.
15.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay WavTool any unpaid amount that was due prior to termination; (d) all payment obligations accrued prior to termination; and (e) Sections 7.4 (Feedback), 8 (Ownership; Proprietary Rights), 10 (User Content), 15.3 (Effect of Termination), 16 (Indemnity), 17 (Disclaimers; No Warranties by WavTool), 18 (Limitation of Liability), 19 (Dispute Resolution and Arbitration), and 20 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Upload to the Service since upon termination of your account, you may lose access rights to any User Content you Uploaded to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address, or other forms of account verification.
15.4. Modification of the Service. WavTool reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. WavTool will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Upload to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Uploaded to the Service.
16. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify WavTool, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “WavTool Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) WavTool Generated Content; (c) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (d) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (e) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
17.1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING WAVETOOL GENERATED CONTENT, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WAVTOOL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WAVTOOL DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WAVTOOL DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
17.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR WAVTOOL ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE WAVTOOL ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM: (a) THE SERVICE; (b) ANY ERRORS, INACCURACIES, OR OMISSIONS IN THE WAVTOOL GENERATED CONTENT OR OTHER CONTENT PROVIDED BY THE AI TOOLS; (c) YOUR ABILITY OR INABILITY TO UPLOAD, EXPORT, RETRIEVE, TRANSFER, OR REMOVE ANY USER CONTENT OR THE WAVTOOL GENERATED CONTENT FROM THE SERVICE OR A MULTI-USER ACCOUNT; AND (d) YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
17.3. WavTool uses artificial intelligence and machine learning to provide the Service. You acknowledge and agree that the technology used by WavTool to provide the Service is experimental, rapidly evolving, and subject to unexpected outputs and results. The AI Tools may provide results that contain errors, omissions, or not accurately reflect real events, places, people, or facts. YOU ACKNOWLEDGE AND AGREE THAT WAVTOOL WILL NOT BE LIABILE FOR ANY MISTAKES, INACCURACIES, OMISSIONS, OR OFFENSIVE MATERIAL IN THE WAVTOOL GENERATED CONTENT OR ANY OTHER CONTENT GENERATED BY THE SERVICE. You rely upon the WavTool Generated Content at your sole risk.
17.4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 17 (Disclaimers; No Warranties by WavTool) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. WavTool does not disclaim any warranty or other right that WavTool is prohibited from disclaiming under applicable law.
18.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE WAVTOOL ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY WAVTOOL ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
18.2. EXCEPT AS PROVIDED IN SECTIONS 19.5 (Commencing Arbitration) AND 19.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE WAVTOOL ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO WAVTOOL FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; AND (b) US$100.
18.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19.1. Generally. Except as described in Section 19.2 (Exceptions) and 19.3 (Opt-Out), you and WavTool agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WAVTOOL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
19.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to WavTool, Inc., Attention: Legal Department – Arbitration Opt-Out, 651 N Broad St, Suit 201, Middletown, Delaware 19709 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once WavTool receives your Opt-Out Notice, this Section 19 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
19.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting WavTool.
19.5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). WavTool’s address for Notice is: WavTool, Inc., 651 N Broad St, Suit 201, Middletown, Delaware 19709. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or WavTool may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, WavTool will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if WavTool has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
19.6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or WavTool must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
19.7. Arbitration Relief. Except as provided in Section 19.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by WavTool before an arbitrator was selected, WavTool will pay to you the higher of: (a) the amount awarded by the arbitrator; and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
19.8. No Class Actions. YOU AND WAVTOOL 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. Further, unless both you and WavTool agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.9. Modifications to this Arbitration Provision. If WavTool makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to WavTool’s address for Notice of Arbitration, in which case your account with WavTool will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
19.10. Enforceability. If Section 19.8 (No Class Actions) or the entirety of this Section 19 (Dispute Resolution and Arbitration) is found to be unenforceable, or if WavTool receives an Opt-Out Notice from you, then the entirety of this Section 19 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20.2 (Governing Law) will govern any action arising out of or related to these Terms.
20.2. Governing Law. These Terms are governed by the laws of the California without regard to conflict of law principles. You and WavTool submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Utah, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
20.4. Licensors. Third parties that license content to WavTool in connection with the Service (“Licensors”) are third party beneficiaries of these Terms, and upon your acceptance of these Terms, such Licensors will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
20.5. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
20.7. Contact Information. The Service is offered by WavTool, Inc., located at 651 N Broad St, Suit 201, Middletown, Delaware 19709. You may contact us by sending correspondence to that address or by contacting use at firstname.lastname@example.org.
20.8. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
20.9. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
20.10. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.