ENCORE MUSIC TECHNOLOGIES, INC.
TERMS OF SERVICE

Last Modified: April 8th, 2021

Acceptance of the Terms of Use

These terms of use are entered into by and between you and Encore Music Technologies, Inc. (”Company,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Use”), govern your access to and use of the website https://clapforencore.com (“site”) and phone application called Encore (“app”) including, including any content, functionality, and distribution and other services offered on or through the site or app (the “Services”), whether as a guest or a registered user.

Please read the Terms of Use carefully before you start to use the Services. By using the Services or by clicking to accept or agree to the Terms of Use when this option is made to you, you accept and agree to be bound and abide by these Terms of Use, our Community Guidelines (found at [https://clapforencore.com/community-guidelines]) and our Privacy Policy (found at https://clapforencore.com/privacy-policy), which Privacy Policy is incorporated herein by reference. If you are an Artist, you also agree to be bound and abide by our Artist Performance Agreement, which Artist’s must agree to prior to performing via the Service, and a copy of which can be found in your account portal. If you do not want to agree to these Terms of Use, our Community Guidelines, the Artist Performance Agreement (if an artist), or the Privacy Policy, you must not access or use the Services.

The Services are offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.

CHANGES TO THE TERMS OF USE

We may revise and update these Terms of Use from time to time in our sole discretion. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms of Use means that you accept and agree to the changes.

MATERIAL CHANGES

If material changes are made to the Terms of Use, we will provide due notice through the Services. If you object to any changes, you may contact us at report@clapforencore.com and close your account. Your continued engagement in our services after notification serves as your acknowledgement of acceptance of any changes.

ACCESSING THE SERVICES AND ACCOUNT SECURITY

We reserve the right to withdraw or amend the Services, and any service or material we provide on the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.

You are responsible for both:

• Making all arrangements necessary for you to have access to the Services.

• Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Use and comply with them.

To access the Services or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide on the Services is correct, current, and complete. You agree that all information which you provide to register with the Services or otherwise is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and, except for your authorized agent(s), agree not to provide any other person with access to the Services or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

SMS TERMS

When you opt-in to the Service, we will send you an SMS message to confirm your signup.

You can cancel the SMS service at any time. Just text “STOP” to (310) 987-4225. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.

If at any time you forget what keywords are supported, just text “HELP” to (310) 987-4225. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.

We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for delayed or undelivered messages***

As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency varies. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to report@clapforencore.com.

If you have any questions regarding privacy, please read our Privacy Policy.

USER CONTENT

All Content that you upload to the Services or otherwise make available hereunder from time to time is referred to as “User Content,” and includes any original works of any type, including, without limitation, sound recordings, audiovisual works (i.e., videos), musical compositions embodied in sound recordings, related promotional materials, along with any other material that is ancillary to such works, including, without limitation, text, software, scripts, graphics, images, audio, and other information relating to the foregoing. All User Content must comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

OWNERSHIP OF USER CONTENT

As between you and us, you retain all rights in the User Content not expressly licensed to us hereunder. You shall be solely responsible for the User Content, whether created by or for you, and the consequences of posting or publishing User Content by means of the Services. You may not submit User Content that contains any pornographic, infringing, hate-related, violent or illegal elements. You may only upload and publish User Content for which you have sufficient rights and licenses to permit our Services as provided herein. You acknowledge that you have no expectation of privacy or confidentiality with respect to the User Content.

We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Services.

INTELLECTUAL PROPERTY RIGHTS

As between you and us, we retain all right, title and interest in and to the Services and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), and all related intellectual property rights. All rights in and to the Services not expressly granted herein are reserved.

You may not reproduce, distribute, modify, publicly perform, publicly display, republish, download, store, transmit, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the Services.

If you reproduce, modify, or otherwise use any part of the Services in breach of the Terms of Use, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. Any use of the Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

TRADEMARKS

All trademarks, designs, slogans, logos and service marks (“Marks”) displayed on the Services are either our property, or the property of third parties. You are not permitted to use these Marks without our prior written consent, or the consent of such third party owner of the Mark(s).

PROHIBITED USES

You may use the Services only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Services:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms of Use.

• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.

• To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm the Company or users of the Services, or expose them to liability.

Additionally, you agree not to:

• Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.

• Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.

• Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

• Use any device, software, or routine that interferes with the proper working of the Services.

• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.

• Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Services.

CONTENT STANDARDS

These content standards apply to any and all User Content made available on the Services. User Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Content must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.

• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person or entity.

• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use, our Community Guidelines, Artist Performance Agreement (if applicable), and our Privacy Policy.

• Be likely to deceive any person.

• Promote any illegal activity, or advocate, promote, or assist any unlawful act.

• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.

• Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.

• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

REPORTING CLAIMS OF COPYRIGHT INFRINGEMENT

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you are a copyright owner or an authorized agent thereof (the “Copyright Owner”) and believe that any content on the Services infringes your copyrights, you may submit a notification pursuant to Title 17, United States Code, Section 512(c)(3), the DMCA (“DMCA Notice”). The DMCA Notice of claimed infringement must be a written communication provided to the designated agent of Company that includes the following information:

• Your physical or electronic signature.

• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.

• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.

• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).

• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.

• A statement that the information in the written notice is accurate.

• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is:

Elizabeth Moody
150 S Rodeo Dr Ste 300, Beverly Hills, CA 90212
(310) 248-3411
dmca@clapforencore.com

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

COUNTER NOTIFICATION PROCEDURES

If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:

• Your physical or electronic signature.

• An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.

• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).

• A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.

• A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided the Services with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

REPEAT INFRINGERS

We reserve the right to promptly terminate without notice any user’s access to our service if that user is determined by us to be a repeat infringer.

RELIANCE ON INFORMATION POSTED

The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.

The Services may include content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

CHANGES TO THE SERVICES

We may update the content on the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.

INFORMATION ABOUT YOU AND YOUR VISITS TO THE SERVICES

All information we collect on the Services is subject to our Privacy Policy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

LINKS FROM THE SERVICES

If the Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party services linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such services.

CLAPS

By purchasing Claps through the Encore Services, you are purchasing a limited, non-transferable, revocable license to participate in the Encore Services. Claps can be used in a variety of different manners depending on the functionality of the Encore Services. The license represented by the Claps may be terminated immediately if your account is terminated for any reason, in Encore’s sole and absolute discretion, or if Encore discontinues providing the Encore Services.

Claps have no monetary value, are non-refundable and cannot be used to purchase or use products or services other than in connection with the Encore Services (e.g. acquiring tickets to view Encore performances or to tip broadcasters in connection with Encore performances).

You have no property interest in Claps, which remain the exclusive property of Encore subject only to your limited, non-transferable revocable license to use in connection with the Encore Services. Any attempt to sell or transfer Claps, except as expressly permitted by Encore, will result in an automatic termination of such license.

Encore may change the conversion price for Claps at any time. Additionally, Encore may change the ways in which you can use Claps, including by introducing or discontinuing functionality of the Encore Services.

Encore has the absolute right to manage, regulate, control, modify and/or eliminate Claps as it sees fit in its sole discretion, and Encore shall have no liability to you or anyone for the exercise of such rights.

Encore may change the conversion price for Claps at any time. Additionally, Encore may change the ways in which you can use Claps, including by introducing or discontinuing functionality of the Encore Services.

If your account is inactive for a continuous period of six (6) months, Encore, in its sole discretion, may charge a monthly maintenance fee by causing your Claps to expire for each month thereafter where your account remains in active. The monthly maintenance fee shall not exceed the number of Claps in your account.

In order to comply with the terms of Encore’s third party merchant processor agreement, you agree to use all Claps within thirty (30) days of their purchase.

REFUND POLICY

You agree that the purchase of Claps is final. Claps are non-refundable, and non-returnable except in Encore’s sole and absolute discretion.

DISCLAIMER OF WARRANTIES

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICES LINKED TO IT.

YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

LIMITATION ON LIABILITY

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE APPLICABLE SERVICE IN THE LAST 12 MONTHS OUT OF WHICH LIABILITY AROSE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use (including all attachments and incorporated documents) or your use of the Services, including, but not limited to, your User Content, any use of the Services’s content services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Services.

GOVERNING LAW AND JURISDICTION

All matters relating to the Services and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in Los Angeles, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

ARBITRATION

At Company’s sole discretion, it may require you to submit any disputes arising from these Terms of Use or use of the Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law.

LIMITATION ON TIME TO FILE CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

WAIVER AND SEVERABILITY

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

ENTIRE AGREEMENT

The Terms of Use, our Privacy Policy, our Community Guidelines, and the Artist Performance Agreement (if applicable) constitute the sole and entire agreement between you and Encore USA Inc. regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

YOUR COMMENTS AND CONCERNS

Please direct feedback, comments, requests for technical support, and other communications relating to the Services to: report@clapforencore.com.