Vampr Pro Services Agreement

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Vampr Pro Services Agreement

Last updated: August 14, 2020

This Agreement (the “Agreement”) is a binding legal agreement between Vampr, Inc., a Californian corporation (“Vampr”, “we”, “us” or “our”), and the person (“you” “your”) being a registrant on the Vampr App (“the Vampr App”) and additionally a subscriber to the premium Vampr App service (“Vampr Pro) and applies to your use of services available to subscribers to a Vampr Pro Plan (“the Vampr Pro Account Services”).

The Agreement shall be read in conjunction with other agreements pertaining to your registration on the Vampr App including, without limitation the Vampr Terms & Conditions https://vampr.me/terms-and-conditions/, the Vampr Privacy Policy https://vampr.me/privacy-policy/ (as they appear at any time) and any other agreement you have entered into with Vampr (including without limitation, and, only if applicable, a Vampr Digital Distribution Agreement (individually and collectively referred to as “Vampr Agreement(s)”) and the terms and conditions of Vampr Agreements are hereby incorporated into and made a part of this Agreement. To the extent there is a conflict between this Agreement and the Vampr Terms & Conditions and/or the Privacy Policy and/or any other Vampr Agreement, the terms of this Agreement shall take precedence to the extent only that the matter relates to our provision to you of Vampr Pro Account Services.

Any capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Vampr Terms & Conditions, or the Vampr Privacy Policy or any applicable Vampr Agreement.

This Agreement addresses certain additional rights and obligations associated with your use of Vampr Pro, your Vampr Pro Plan and the Vampr Pro Account Services.

  1. Your Acceptance of this Agreement and Vampr’s Right to Modify this Agreement.

(a) You must accept all of the terms and conditions contained in this Agreement before activating your Vampr Pro Plan, accessing or using the Vampr Pro Account Services. Your completing purchase of Vampr Pro presented to you on the App Store indicates your acknowledgment that you have read, understand and accept this Agreement. If you do not accept this Agreement, you may not access or use any of the Services designated by Vampr for subscribers to a Vampr Pro Plan.

(b) Vampr may modify this Agreement from time to time by posting the modified version on the Vampr website and/or the Vampr App. Our right to modify this Agreement includes the right to add, remove or amend the terms hereof. When this Agreement is modified, we will also modify the “Effective as of” date set forth at the beginning of this Agreement.

(i) If and when we modify this Agreement, we will send you Notice, pursuant to Section 12, below, of such modification at least five (5) calendar days prior to its effective date. If you do not accept any modification we have made, your only recourse is to terminate your subscription to Vampr Pro as provided in Section 2(e), below, within five (5) days of our having sent you Notice of such modification.

(ii) Your failure to terminate your subscription to Vampr Pro pursuant to Section 1(b)(i), above, and as provided in Section 2(e), below, or your participation in any Vampr Pro Account Services that are limited exclusively to subscribers of Vampr Pro after the “Effective as of” date of any modification we may make to this Agreement, constitutes your agreement to be bound by  all such modifications.

  1. Term and Termination.

(a) Subject to the provisions of Sections 2(b) and 2(c), below, the term of this Agreement shall commence on the date you purchase Vampr Pro and shall remain in full force and effect during the Subscription Term, or until terminated. This Agreement will automatically renew at the end of each Subscription Term for another Subscription Term of the same length unless you terminate your Vampr Pro account prior to the end of such Subscription Term. The Subscription Fees applicable to such renewal shall be set at Vampr’s then-current rate for Subscription Fees applicable to the then level of your Vampr Pro subscription with Subscription Fees charged unless and until you terminate your subscription to Vampr Pro. You may terminate your subscription to Vampr Pro, at any time, for any reason, in the manner provided in Section 2(e), below.

(b) Notwithstanding the foregoing, and without limiting Vampr’s other rights and remedies set forth in this Agreement, Vampr reserves the right, in its sole discretion, at any time, for any or no reason, with or without prior notice, and without liability, to restrict, suspend, or terminate your access to or use of all or any part of Vampr Pro and/or to take technical and/or legal steps to prevent you from accessing and/or using the Vampr Pro Account Services. In no event shall Vampr be liable to you or to any third party should Vampr exercise this right from time to time.

(c) Upon any termination or expiration of your subscription to Vampr Pro whether pursuant to Section 1(b)(i), 2(a) or 2(b), above, you will no longer have access to or the benefit of the features available exclusively to Vampr Pro subscribers. Without limiting the generality of the foregoing, upon expiration or termination of your subscription to Vampr Pro, Vampr may remove your Music Tracks from any monetization opportunity that is exclusively reserved for Vampr Pro subscribers (and you shall not be eligible for Fees applicable to Vampr Pro subscribers for any monetization opportunity, either prior to or after the time of such expiration or termination); provided, however, that your Music Track(s) may, nonetheless, continue to be available for participation in services that are not limited to subscribers to the Vampr Pro Account Services.

(d) No termination of your subscription to Vampr Pro pursuant to this provision shall affect any license for your Content, including, without limitation, your Music Tracks, issued through or by means of any applicable Vampr Agreement and that commenced prior to such termination.

(e) To terminate your subscription to the Vampr Pro Account Services, you must complete the process to manage your subscription via the point of purchase (for example, the App Store).

(f) In the event that you terminate your subscription to Vampr Pro your account will transition back to a non-premium registration with the Vampr App unless you act to delete that registration by following the instructions in “Settings” in the Service. Vampr will transition your account to non-premium registration by modifying your Content according to Vampr policies and procedures and you hereby give permission for Vampr to make those modifications to your account acknowledging that you may then operate and modify your non-premium account in accordance with the Vampr Terms & Conditions applicable to non-premium registrations.

(g) Your and our rights and obligations set forth in Sections 2, 5, 6, 7, 8, 11, 12, 14, and 16, and any right or obligation either you or we have in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, shall survive any such termination or expiration.

  1. Vampr Pro Account Services.

The subscription plan for Vampr Pro you select for purchase (“Vampr Pro Plan”) and the terms and conditions of this Agreement define the features of Vampr Pro that you may access and use and the applicable fees (“Subscription Fees”) for your Vampr Pro Plan. Your subscription to Vampr Pro and the Services applicable to that subscription may be chosen by you as a monthly, six-monthly or annual subscription or for such other period as Vampr may designate (each, a “Subscription Term”).

All information regarding your Vampr Pro Plan, applicable Vampr Pro Account Services and applicable Subscription Fees can be seen and are described on the Vampr Pro Purchase Screen(s) in the Vampr App, or further described on the Vampr website, as applicable at that time.

  1. Fees; Payment.

All Subscription Fees are non-refundable and non-pro-ratable and the amount, manner and method of payment of the Subscription Fees for the Vampr Pro Plan to which you subscribe shall be described on the Vampr Pro Purchase Screen(s) in the Vampr App, or further described on the Vampr website.

  1. Representations and Warranties.

You hereby represent, warrant and covenant, at all times that you maintain a subscription to Vampr Pro and a Vampr Pro Plan, that:

(a) all Account registration information you submit is complete and correct in all respects;

(b) you will maintain the accuracy of such information;

(c) you are 18 years of age or older; and

(d) your use of Vampr Pro and any Vampr Pro Account Services limited to subscribers of Vampr Pro, does not violate any applicable law, rules, regulations, orders, or agreements with third parties.

  1. Disclaimers.

(a) You acknowledge and agree that the Vampr App and all Vampr Pro Account Services are provided on an “as is” and “as available” basis and, to the full extent allowed by applicable law, rules, regulations and orders, Vampr expressly disclaims all representations and warranties, whether written or oral and whether express or implied, including without limitation any representation or warranty with respect to merchantability, fitness for a particular purpose, title or non-infringement, any representation or warranty with respect to the reliability or performance of the site or the services or the reliability, accuracy or completeness of any content. In addition, Vampr does not represent, warrant, endorse, guarantee or assume responsibility for any third-party product or service advertised or offered on or through the site or the services or any hyperlinked website or feature in any banner or other advertising. You understand and agree that Vampr is not responsible or liable for any transaction between you and any third party. We have no control over and do not guarantee the ability of rights holders to license content or the ability of rights recipients to pay for content or that a rights holder or rights recipient will actually complete a transaction. As with any purchase of a product or service through any medium or in any environment, you should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from or on behalf of Vampr shall create any warranty on behalf of Vampr in this regard. You agree that you are making use of the site and/or the services at your own risk. Some aspects of this section may not apply in some jurisdictions, solely to the extent prohibited by the applicable laws of such jurisdictions.

(b) Although Vampr will in good faith endeavor to remedy errors in the Vampr App or the Vampr Pro Account Services, Vampr specifically does not warrant that the Vampr App or the Vampr Pro Account Services will operate without error or interruption or that all errors in the site or the services will be corrected. Vampr shall have no liability associated with any inoperability, performance of or inability or delay in your access to the site or the services. Vampr will not be responsible for any loss or any misappropriating, infringing or wrongful use of your content because of the Vampr App, the Vampr Pro Account Services or any other act or omission of Vampr, a third party, or otherwise.

(c) Vampr is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the internet, the site or on any of the services or combination thereof, including any injury or damage to users or to any person’s computer or other hardware related to or resulting from participation or downloading materials in connection with the services.

  1. Limitation on Liability.

(a) In no event shall Vampr or any of its affiliates, or any officers, directors, employees, agents, owners or representatives of any of the foregoing (collectively, “related parties”) be liable to you or any other party for any special, indirect, reliance, incidental, punitive, exemplary or consequential damages of any kind, lost profits, lost revenue, loss of business, or loss of goodwill, whether arising in contract, tort (including without limitation negligence) or otherwise, or for any breach of security associated with the transmission of sensitive information through the site or the services, even if Vampr or any of its related parties have been notified of the possibility thereof.

(b) Without limiting the generality of the foregoing and to the extent permitted by applicable law, none of the related parties are liable or shall be responsible for any damages or losses resulting directly or indirectly from;

(i) your use or inability to use the Vampr App or the Vampr Pro Account Services;

(ii) advice, direction or information provided by Vampr;

(iii) interruptions to the Vampr App or the Vampr Pro Account Services;

(iv) viruses or malicious software contained on or transmitted through the Vampr App or the Vampr Pro Account Services;

(v) bugs or errors of any kind on the Vampr App or in the Vampr Pro Account Services;

(vi) damage to your hardware by use of the Vampr App or the Vampr Pro Account Services;

(vii) the actions or omissions of third parties, including without limitation other Vampr users; or

(viii) a suspension or termination of your account. Some jurisdictions do not allow certain disclaimers of warranties or exclusions of damages and, to the   extent prohibited by law, such disclaimers and exclusions may not apply to you.

(c) Regardless of the previous paragraph 7(a) and 7(b), if any related party is found to be liable, the aggregate liability of the related parties for any and all claims, actions, demands, losses, liability, damages (actual and consequential), costs, expenses or similar items of any kind or nature, whether known or unknown (collectively, “claims”) arising under or related to this agreement, the site, the services or otherwise shall be limited to the lesser of

(i) one hundred dollars ($100.00), or

(ii) the fees actually paid to and retained by Vampr for the specific activity or Vampr Pro Account Service giving rise to the liability.

  1. Indemnity.

You agree to indemnify and hold harmless Vampr and its Related Parties from and against any and all claims arising out of or related to:

(a) your access to or use of the Vampr App or the Vampr Pro Account Services;

(b) your violation of any third party right, including without limitation any copyright, patent, trademark, property or privacy right;

(c) your breach of any of your representations, warranties or covenants contained in this Agreement; or

(d) any Content including, without limitation, any Music Track(s) or Trademarks that you post on or through the Vampr App or the Vampr Pro Account Services.

  1. Disputes and Interactions with other Users.

You are solely responsible for your interactions with other Vampr users. Vampr reserves the right, but has no obligation, to monitor disputes between you and other Vampr users. If you have a dispute with one or more Vampr users, you release Vampr and the other Related Parties from all claims arising out of or related to such disputes. By accessing the Vampr App or using the Vampr Pro Account Services, you expressly waive any protections, whether statutory or otherwise, that would otherwise limit the coverage of this release to include only those claims that you may know or suspect to exist in your favor at the time of agreeing to this release.

Vampr is not responsible for the conduct or content of other members or third parties on, through, or following use of the Service. You agree to use caution in all interactions with other members, particularly if you decide to communicate off the Service or meet in person. You agree that you will not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, or provide any information that may compromise your personal security to other members, without exercising all reasonable due diligence.

You are solely responsible for your interactions with other members. You understand that Vampr does not conduct criminal background checks on its members or otherwise inquire into the background of its members. Vampr makes no representations or warranties as to the conduct of members.

  1. U.S. Export Controls.

Software available in connection with the Vampr App or the Vampr Pro Account Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Vampr App or from the Vampr Pro Account Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

  1. Legal Disputes; Governing Law; Venue.

PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. You agree that any claim or dispute that may arise between you and Vampr with respect to this Agreement will be resolved in accordance with this Clause 11.

(a) Applicable Law. You agree that, except to the extent inconsistent with or pre-empted by federal law, this Agreement and any claim or dispute that may arise between you and any Related Party under it shall be construed under the laws of the State of California, without regard to its conflict of laws rules.

(b) Agreement to Arbitrate. You and Vampr agree that any and all claims and disputes arising between us pursuant to this Agreement and your use of the Vampr App, subscription to a Vampr Pro Plan or the Vampr Pro Account Services shall be resolved exclusively through final and binding arbitration. Alternatively, you may assert your claims and disputes in small claims court, if the claim or dispute so qualifies, so long as the claim or dispute remains in small claim court and advances on an individual (non-class) basis. The Federal Arbitration Act shall govern this agreement to arbitrate.

(i) Class and Representative Actions Prohibited. You and Vampr agree that each of us (or any other Related Party) may bring claims and disputes against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Vampr agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims or disputes or preside over a representative or class proceeding. The arbitrator may award relief only to the individual bringing the action and any relief awarded may not affect other Vampr users.

(ii) Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable) as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. The AAA’s rules shall govern the number of arbitrators assigned to conduct the arbitration. The party intending to seek arbitration shall send to the other, by certified mail, notice of the dispute. Such notice should be sent to Vampr, Inc., 3110 Main St, Building C, Santa Monica, 90405, CA, USA, Attn: Legal. Vampr shall send any notice to you at the email address on file associated with your Vampr Pro Account. If you and Vampr are unable to resolve any of the claims or disputes described in such notice within 30 days after such notice is received, either party may initiate arbitration proceedings. The form for initiating arbitration is available at www.adr.org, and the party initiating arbitration must both file this form with the AAA and mail a copy of the completed form to the other party at the same addresses as set forth earlier in this paragraph. Any settlement offer made by you or Vampr shall not be disclosed to the arbitrator. The arbitration hearing shall be held in a mutually agreed location. The arbitrator’s award shall be consistent with this Agreement and final and binding, and judgment shall be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees shall be governed by AAA’s rules.

(iii) Invalidity. With the exception of Section 11(b)(i) above (“Class and Representative Actions Prohibited”), if an arbitrator or court decides that any portion of this Clause 11 is invalid or unenforceable, all other portions of this Clause 11 shall continue to apply. If an arbitrator or court decides that Clause11(b)(i) is invalid or unenforceable, then the entirety of this Clause 11(b) and its subparts shall be null and void, but the rest of this Clause 11 shall continue to apply.

(iv) Opt-Out Procedure. If you are a new Vampr user, you can opt-out of this agreement to arbitrate by mailing a written opt-out notice postmarked no later than 30 days after the date you accept the terms of this Agreement for the first time. The opt-out notice should be mailed to: Vampr, Inc., 3110 Main St, Building C, Santa Monica, 90405, CA, USA Attn: Legal. The opt-out notice should state that you are opting out of the agreement to arbitrate in the Vampr Pro Account Services Agreement and provide your name, address, phone number, Account information, electronic mail address, signature and date.

(v) Amendments to Agreement to Arbitrate. You and Vampr agree that if Vampr amends this agreement to arbitrate in the future, the amendment shall not apply to a claim or dispute filed by either party prior to the effective date of the amendment.

(c) If the agreement to arbitrate does not apply to you, either because you opt-out or as a result of a decision by an arbitrator or court order, you agree that any claim or dispute that has arisen between you and Vampr will be resolved exclusively by a state or federal court located in Los Angeles, California. You and Vampr agree to submit to personal jurisdiction of the courts located in Los Angeles, California for purposes hereof.

  1. Notices.

(a) Unless otherwise specifically provided elsewhere in the context in which it applies, any notice required or permitted to be given to any party to this Agreement, or any other agreement between you and Vampr, shall be in writing and shall

(i) If to Vampr, be either personally delivered by hand, delivered by prepaid courier or sent by prepaid registered mail and shall be deemed received upon delivery, and

(ii) if to a Member, be delivered either via email, or by being posted as a notification to the Member’s Account.

(b) Any such notice shall be delivered or sent:

(i) if to Vampr, to 3110 Main St, Building C, Santa Monica, 90405, CA, USA, Attn: Legal, and

(ii) if to you, either to the email address specified in connection with your Account, or by being posted as a notification to your Account.

(c) The address at which notice may be given to Vampr may be changed by Vampr by giving you written notice as provided in this Section 12.

  1. Force Majeure.

Vampr shall not be liable for any delay or failure in performance resulting from acts or occurrences beyond the reasonable control of Vampr, including, without limitation, (and whether similar or dissimilar) acts of God, acts of war, terrorism, riot, fire, flood, pandemic or other disaster or other natural occurrence, acts of government, strike, lockout, or power or Internet failure.

  1. Assignment.

You may not assign or transfer any of your rights or obligations under this Agreement, or any other agreement between you and Vampr, without the prior written consent of Vampr, which consent Vampr may withhold in its sole discretion, and any such attempted assignment or transfer without such prior written consent shall be null and void. This Agreement shall be binding on the parties and their respective successors and permitted assigns.

  1. Relationship of the Parties.

You and Vampr enter into this Agreement as independent contractors, and neither Vampr nor you shall be or construed to be a partner, joint venturer, agent or employee of the other party.

  1. General Provisions.

This Agreement, the Vampr Terms & Conditions, or the Vampr Privacy Policy or any applicable Vampr Agreement, constitute the entire agreement between you and Vampr regarding your use of the Vampr App, your subscription to a Vampr Pro Plan and use of the Vampr Pro Account Services, operate to the fullest extent permissible by law and supersede all prior and contemporaneous agreements, understandings, proposals, and negotiations of any kind, whether oral or written, with respect to the subject matter hereof and thereof. The failure of Vampr to exercise or enforce any right or provision shall not operate as a waiver of such right or provision. Headings are inserted for convenience of reference only and shall not be used for the purpose of interpreting this Agreement, Vampr Terms & Conditions, or the Vampr Privacy Policy or any applicable Vampr Agreement. No party may create any obligation on behalf of any other party except as expressly set forth herein or in connection with any other agreement between you and Vampr. If any provision of this Agreement, or any other agreement between you and Vampr, is declared by a court of competent jurisdiction to be invalid, unlawful, void or unenforceable, such provision shall be severed from the agreement in question, and the other provisions shall remain in full force and effect, and that provision shall, to the fullest extent lawful, be reformed and construed as if such invalid, unlawful, void or unenforceable provision (or part thereof) had never been included herein or therein and to be valid, lawful and enforceable to the maximum extent possible.