Skempi Terms Of Use

1. INTRODUCTION AND ACCEPTANCE OF TERMS

Welcome to Skempi®, an online music streaming service that allows you to discover, play and share music from your web browser and on your compatible mobile devices. Skempi’s website is located at www.Skempi.com (the “Skempi Site”). We refer to the Skempi Site and the mobile applications made available by Skempi as the “Service Applications”, and we refer to the Service Applications and the service provided through the Service Applications, collectively, as the (“Skempi Service”). These Terms of Service (“Terms of Service”) set forth a binding agreement between you and Skempi governing your use of the Skempi Service. These Terms of Service act as the end user license agreement (or “EULA”) governing your use of the web and mobile Service Applications.

In these Terms of Service, “Skempi” refers to Skempi, Limited.; a private limited company based in the United Kingdom, with its principal business address: 29 Harley Street Suite B, London, W1G9QR. Skempi is registered with the Companies House, the registrar of companies for England and Wales under company number 7959135 and organized under the laws of Amsterdam, the Netherlands.

Please read these Terms of Service carefully. By using any of the Skempi Services, or by creating a user account, you signify your acceptance of these Terms of Service, as they may be amended by Skempi from time to time in its sole discretion. You may only use the Skempi Service and/or open an account if your acceptance of these Terms of Service is not prohibited by applicable law. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD. If you are younger than 18 years old, you must get permission from a parent or guardian to open an account and your parent or guardian must agree to these Terms of Service. If you do not agree to these Terms of Service, then you must cease using the Skempi Service. THESE TERMS OF SERVICE ARE GOVERNED BY THE LAWS SET FORTH IN SECTION 23, DEPENDING ON THE TERRITORY IN WHICH YOU USE THE SKEMPI SERVICE.

2. PAYMENT TERMS

Please refer to our Payment Terms for the payment terms, conditions and policies applicable to the subscription services and other paid services made available through the Skempi Service. By subscribing for paid services, you agree to be bound by and accept the Payment Terms. The Payment Terms are subject to change without prior notice at any time, at Skempi’s sole discretion. Skempi’s subscriptions and other paid services are made available through the Skempi Service, and are accordingly also subject to these Terms of Service. The Payment Terms are incorporated into these Terms of Service by this reference.

3. SKEMPI SERVICE

3.1 Streaming

Paid Subscription-based Streaming

Skempi’s paid subscription service provides for full-length streaming of songs across any platform on which Skempi makes the Skempi Service available (i.e., on or through any of the Service Applications), depending on your subscription tier. Subscribers to Skempi’s “VIP” subscription tier will also have an offline option to select songs to play back on their compatible mobile devices (when synced), even when there is no Internet or mobile connection available.

Free Subscription-based Streaming with Ads

Skempi provides a free subscription tier with advertising, which provides for free full-length streaming of songs on the Skempi Site and on Skempi’s Service Applications for so long as you maintain your account. This subscription tier provides for intermittent audio and visual advertisements from third parties. This subscription tier cannot be accessed on or through any mobile Service Application, but it otherwise does not have limitations on the number of songs or the period of time in which the tier is available.

Mobile Streaming

You will be able to access the Skempi Service on compatible mobile devices (through Skempi’s Service Applications) depending on your subscription tier. An Internet enabled mobile device on which you have downloaded the applicable mobile Service Application is required. Standard data and usage charges instituted by your mobile carrier may apply (and are not included in any subscription fee paid to Skempi) and, accordingly, you should check with your mobile carrier regarding the terms of your individual data or usage plan. As a Skempi subscriber, you will be able to access Skempi’s database of songs from any geographical location. Notwithstanding this, those songs that you are permitted to retain on your compatible mobile device may be played no matter what your geographical location, as long as you remain a paid Skempi subscriber of the Skempi mobile Service Application.

3.2 Downloads

Skempi does not make music downloads available. All forms of extracting audio from the Service Application are considered content piracy and are therefore punishable by law. You acknowledge that any unauthorized copying, audio extraction, audio recording, or unauthorized use of the Service Applications is a violation of these Terms of Service and is strictly prohibited.

3.3 Availability

The Skempi Service is intended to provide full-length streaming of Skempi’s entire music database, and depending on your subscription tier, the ability to select songs for playback offline. You understand and acknowledge, however, that your ability to access songs will depend on you having all necessary equipment and telecommunications systems required and that there may be instances where our rights to songs are limited by our licensors, in which event, your access to those songs would be limited.

4. POLICIES

4.1 Skempi’s Sharing Policy

When you discover, play, and share music or other content on or through the Skempi Service, you authorize Skempi to share and/or publicly display such activity on or through: (i) the Skempi Service; (ii) any third party social networking sites and services you have linked to your Skempi accounts, such as Facebook or Twitter (“Social Networks”). Additionally, when you share your music listening activity through Facebook in accordance with Facebook's Sharing Policy, you authorize Skempi to share such viewing activity through the Skempi Service.

4.2 Abuse Policy

Skempi reserves the right to manage the Skempi Service in a manner that it believes best benefits its users and best enables it to maintain the Skempi Service. The Skempi Service is for your own personal, non-commercial use, and accordingly, Skempi has determined that its ability to provide the Skempi Service is disrupted when users stream an abnormally high number of songs in a short amount of time, or otherwise stream songs in a manner that is not consistent with normal, personal use (even if those activities technically comply with the specific terms of any free or paid offering). Thus, Skempi reserves the right to discontinue any portion or all of the Skempi Service, or to terminate or suspend the account of any person, that, in Skempi’s experience and sole determination, cause or result in disruptive usage patterns or, with respect to individual account holders, otherwise use the Skempi Service in a manner that is not consistent with normal, personal use. For example, you should not share your Skempi account with anyone, use Skempi as a radio station or jukebox in your commercial establishment (regardless of the type of establishment) or other public space, or have a software application use the Skempi Service for you for any purpose (unless otherwise permitted by Skempi).

5. PROPRIETARY RIGHTS

You acknowledge and agree that Skempi, and its licensors, retain all right, title and interest in and to all data and information (excluding data and information that you provide), content and materials provided on or through the Skempi Service (including, without limitation, the musical compositions, audiovisual works, editorial and contextual information (about artists and songs), text, images, photographs, graphics, page headers, the selection and arrangement of elements displayed on or through the Skempi Service, the compilation of all content and materials on the Skempi Service, and the business process, procedures, methods and techniques used in the Skempi Service) and all associated patent rights, copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world. Skempi®, the Skempi logo and the Skempi “button” logo are the common law and/or registered trademarks of Skempi. All other proprietary trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Skempi Service (including, without limitation, as displayed on or through any of the Service Applications) are the property of Skempi. Skempi’s intellectual property, including, without limitation, its trademarks and trade dress, may not be used in any manner that is likely to cause confusion among users, or in any manner that disparages Skempi. All rights are expressly reserved. All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, and other intellectual property contained on or within the Service Applications and through the Skempi Service are the property of the respective third parties, including the respective content owners, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such intellectual property. Use of third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Skempi to enforce any of your rights in relation thereto.

6. LIMITED LICENSE

Skempi grants you a limited, non-exclusive and non-assignable license to access and use the Skempi Service for your personal, non-commercial use, subject to all of the terms and conditions of these Terms of Service and not for redistribution of any kind. Skempi may make certain software, including, without limitation, the Service Applications, available to you through your use of the Skempi Service. The Service Applications are deemed licensed to you by Skempi under a non-exclusive, non-assignable license for your personal, non- commercial, use only, and your use of such Service Applications is subject to these Terms of Service. With respect to any mobile Service Application, this license is limited to the right to use the applicable mobile Service Application solely on a device that you own or control and as permitted by any usage rules made available from time to time by the applicable provider of a mobile application platform. Skempi does not transfer, and, as between you and Skempi, retains all title to and ownership of the Service Applications and all intellectual property rights in the Service Applications. You may not take any action to jeopardize, limit or interfere with Skempi's ownership of and rights with respect to the Service Applications. You acknowledge that any unauthorized copying or unauthorized use of the Service Applications is a violation of these Terms of Service and is strictly prohibited.

Additionally, you may not (i) remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the Skempi Service, (ii) reproduce, download (other than page caching), modify, publish, distribute, transmit, disseminate, broadcast, transfer, license, sell, rent, lease, adapt, create derivative works of, publicly display or perform, or in any way exploit any content, materials or individual elements provided on or through the Skempi Service without Skempi’s prior written consent, (iii) make any commercial use or any derivative use of any of the Skempi Service or any of the content, materials or individual elements provided on or through the Skempi Service, (iv) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the Skempi Service without Skempi’s prior written consent, (v) use any circumvention tools or any metatags or other hidden text utilizing Skempi’s name, trademark, URL or the name of any of the Skempi Service without Skempi’s prior written consent, or (vi) disassemble, decompile or reverse engineer the Software or any other materials made available on or through the Skempi Service or used to provide any of the Skempi Service. The owners of Content made available through the Skempi Service (including principals, where Skempi is acting as sales agent) are intended third-party beneficiaries of these Terms of Service and will have the right to enforce these Terms of Service against you and invoke all rights hereunder including limitations of liability. Skempi, as a reseller to you, does not accept orders from music dealers, exporters, wholesalers, any businesses of any kind or other customers who intend to resell. The delivery of a product or Content does not transfer to you any commercial or promotional use rights in the product or Content.

7. ACCOUNTS AND SECURITY

To access the Service Applications or use certain aspects of the Skempi Service, you will be directed to create a user account by providing certain information about yourself, or to create new, or to use existing, and/or Social Network log-in details. As part of Skempi’s stand-alone registration process, you will be asked to submit, among other things, your email address and to select a password. You agree that all information you provide to Skempi for purposes of creating an account (“Registration Information”) will be true, accurate, current and complete and your failure to provide such information will constitute a breach of these Terms of Service and may result in the immediate termination of your account. By utilizing your Social Network log-in details to log into the Skempi Service (including on or through any of the Service Applications), or by linking your Skempi Service account with any Social Network account, you expressly authorize Skempi to receive, and for such Social Network to share, certain of your information that is available on or through your Social Network account, including, without limitation, your profile information, friends names, your photos, privacy settings and certain other information that will be disclosed to you (and authorized by you) during the log- in process; and you also authorize Skempi to generate and publish on Social Network news feed or timeline actions you take on the Skempi Service, and to allow you to interact with your Social Network friends on the Skempi Service. If linked, you agree to allow the Social Networks to receive information concerning the actions you take on the Skempi Service. In the event you no longer want the Skempi Service to publish your Skempi activity on your Social Network news feed or timeline, or want to otherwise limit the ways in which the Skempi Service interacts with your Social Network account, you can always disable aspects of this feature by changing your application settings in the Social Networks or disable aspects of this feature in your privacy settings page on the Skempi Service Application.

Without limiting the above, by submitting your information through the Service Applications, and/or by utilizing Social Network log-in details to log-in to the Skempi Service, by linking your Skempi Service account with any Social Network account, or by otherwise providing Registration Information to Skempi, you grant Skempi a perpetual, royalty-free, non-exclusive license to use, reproduce, transmit, and display the information obtained from these third parties and any Registration Information in connection with Skempi’s operation of the Service Applications and/or performance of the Skempi Service (subject to the other terms and conditions of these Terms of Service, including Section 4.1). You will (i) promptly update your Registration Information to keep it true, accurate, current and complete, (ii) maintain the confidentiality of your log-in credentials, and (iii) properly exit from your account at the end of each session. You will not (a) select or use the Social Network account or email address of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address that is profane, offensive or otherwise inappropriate, or (d) allow any other party to use your account and/or password. You agree to notify Skempi immediately of any known or suspected unauthorized use(s) of your account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your user name or password or Social Network account log-in details. You understand and agree that you will be liable for all activities that occur under any account created for your use, even if such activities were not committed by you. Skempi is not responsible for any loss or damage as a result of someone else using your account or password with or without your knowledge.

8. PRIVACY

Skempi is committed to respecting your privacy rights. All information about you including your Registration Information, any information obtained by Skempi as a result of your Social Network log-in, linking to a Social Network account, any Registration Information and any information stored or transmitted in any way on the Service Applications or through the use of the Skempi Service is subject to Skempi’s Privacy Policy. Skempi’s Privacy Policy is incorporated into these Terms of Service by this reference. Your activities on any Social Network are covered by its applicable terms of use and privacy policy.

9. CONTENT PROVIDED BY YOU

You understand that all data, information, text, images, software, sounds, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, on the Service Applications or through the use of any of the Skempi Service, are the sole responsibility of the person posting or transmitting such Content. You, and not Skempi, are entirely responsible for all Content that you upload, post, email, transmit, distribute or otherwise make available on the Service Applications or through the use of any of the Skempi Service or that is provided or transmitted through your account. You acknowledge that you will have the burden of proving that any such Content does not violate any laws or infringe any third party rights.

Skempi does not control user-generated Content posted on or through the Service Applications or transmitted through the use of any of the Skempi Service and, as such, does not guarantee the accuracy, reliability or quality of such Content. You understand that by using the Service Applications or using any of the Skempi Service, you may be exposed to user-generated Content that you may consider to be offensive, indecent or objectionable. Under no circumstances will Skempi be liable in any way for any user-generated Content including, but not limited to, any errors or omissions in any user-generated Content, or any loss or damage of any kind incurred as a result of the use of any user-generated Content posted, emailed, transmitted or otherwise made available on or through the Service Applications or through the use of any of the Skempi Service. You agree that Skempi may, in its sole discretion, refuse to post, store or transmit any Content submitted by you and may move, remove, edit or modify any such Content for any reason at any time.

You acknowledge, consent and agree that Skempi may access, preserve and disclose account information and/or Content that you provide if Skempi is required to do so by law or if it believes in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms of Service, (iii) respond to claims that any Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Skempi, its employees, partners and agents or members of the public. By posting, displaying or performing Content on or through the Service Applications or transmitting or otherwise distributing Content through the use of any of the Skempi Service, you grant Skempi and its affiliates, successors and assigns, a perpetual, irrevocable royalty-free, worldwide, non-exclusive license to use, reproduce, distribute, transmit, display, publicly perform, edit, translate and reformat such Content in connection with the operation of the Service Applications and/or performance of the Skempi Service for you by Skempi or any of its affiliates, successors, assigns or agents. You will not be compensated for any Content that you provide. You agree that Skempi may publish or otherwise disclose your name in connection with your Content. By posting, displaying or performing Content on or through the Service Applications or transmitting or otherwise distributing Content through the use of any of the Skempi Service, you represent and warrant that you own the rights in such Content or are otherwise authorized to post, display, perform, transmit or distribute the Content.

10. USE OF THE SKEMPI SERVICE

You will comply with all applicable laws, statutes, ordinances and regulations in your use of the Skempi Service. Skempi may immediately terminate your account, or suspend access to your account, in its sole discretion and without notice, for conduct that Skempi reasonably believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms of Service or any other policies or guidelines posted on or through the Service Applications, or (iii) harmful to other users, third parties, or Skempi’s business. Use of your account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, Skempi may terminate your account if you file any claim against Skempi, or any claim which in any way involves Skempi. Upon Skempi’s termination of your account for any of the forgoing reasons, (a) you may not establish a new account for a period of one (1) year from the date of termination, (b) Skempi will have no obligation to notify any third parties regarding such termination, and (c) you will be responsible for any damages that may result or arise out of termination of your account. You agree not to:

11. EXPLICIT CONTENT

Certain music albums available on or through the Skempi Service may contain explicit content. Skempi assigns the "explicit content" to an entire album and not the individual songs on the album. All individual songs from such labeled albums will be labeled as "explicit" within the Skempi Service ("Explicit Tracks"). Any of your searches on the Skempi Service may return explicit content. On the Skempi service the ''safe- mode'' settings is provided which disables explicit content from appearing in search and discovery. Skempi will have no liability or responsibility to you for any content or materials, including Explicit Tracks, that may be available in connection with the Skempi Service that you might find to be offensive, indecent or objectionable.

12. ADVERTISEMENTS; LINKS TO OTHER WEBSITES

The Service Applications may contain third party advertisements or promotions and/or links to other websites and applications (“Third Party Sites”). Skempi provides these advertisements, promotions and links as part of some of its subscription tiers (in applicable territories) or as a convenience to you and the inclusion or display of any advertisement, promotion or link does not constitute or imply any affiliation, endorsement or sponsorship by Skempi of any given advertiser or its products, or of any given Third Party Site or of any given content contained in the advertisement, promotion or Third Party Site. Skempi makes no guarantees about the accuracy, content or quality of the information, or of the products and services, provided by such advertisements, promotions or Third Party Sites and Skempi assumes no responsibility for misleading, objectionable or inaccurate information, or for the products and services, that may be obtained from or through such advertisements, promotions or Third Party Sites. Your interaction or participation with any advertisement or promotion (or the third party sponsor thereof) or with any Third Party Site, whether on or through the Service Applications or any Third Party Sites, are solely between you and such third party and your interaction or participation is subject to the terms and conditions associated with that advertisement, promotion or Third Party Site. You acknowledge and agree that Skempi is not responsible or liable in any way, including for any loss or damage you incur, (i) as a result of your interaction or participation with any advertisement or promotion (or the third party sponsor thereof), whether on or through the Service Applications or any Third Party Sites, (ii) as a result of your activity or interaction on or with any Third Party Site, (iii) for any products or services, or your use thereof, that are the subject of any advertising or promotion, or (iv) for any content, advertising, products or services, or your use thereof, on or made available from any Third Party Sites.

13. WARRANTY DISCLAIMERS

You understand that the processing and transmission of communications relating to the use of any of the Skempi Service may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that Skempi will not be responsible or liable for the timeliness, deletion, mis-delivery or failure to store any data, information or content that you provide for display on or through the Service Applications or for transmission through the use of any of the Skempi Service. Please read the following – it is an important disclaimer: The Service Applications, the Skempi Service and all information and materials provided through the same are provided on an “as is” and “as available” basis without any warranty or condition, express or implied. To the maximum extent permissible under applicable law, Skempi, and each of its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, specifically disclaim all implied warranties including, without limitation, implied warranties of title, quality, performance, merchantability, fitness for a particular purpose and non-infringement. Further, no warranties will be implied by any course of dealing or course of performance. Skempi makes no representation or warranty that (i) the Service Applications or the Skempi Service will meet your expectations or requirements, (ii) the Service Applications or the Skempi Service will be available, uninterrupted, timely, secure, accurate, complete or error-free, (iii) any results or information that may be obtained from the use of the Service Applications or the Skempi Service will be accurate, timely, complete or reliable, (iv) any errors or defects in the Service Applications or the Skempi Service will be corrected, or (v) the Service Applications and the Skempi Service and/or the servers that make the Service Applications and the Skempi Service available are free of viruses, clocks, timers, counters, worms, software locks, Trojan horses, trap doors, time bombs or any other harmful codes, instructions, programs or components. Operation of the Service Applications and the Skempi Service may be interfered with by numerous factors outside of Skempi’s control including, but not limited to, telecommunications network disruptions. Skempi is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Service Applications or the Skempi Service. You acknowledge that the entire risk arising out of the use, inability to use or performance of any of the Skempi Service remains with you to the maximum extent permissible under law. For the avoidance of doubt, no provider of a mobile application platform has any warranty obligation, or any obligation to provide maintenance and support services, with respect to any mobile Service Application or the Skempi Service. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. You acknowledge and agree that your sole remedy for any problems or dissatisfaction with any of the Skempi Service is to terminate your account and discontinue use of the Service Applications and the Skempi Service.

14. LIMITATION OF LIABILITY

Please read the following – it is an important limitation of Skempi’s liability: To the maximum extent permissible under applicable law, in no event will Skempi or its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, be liable with respect to the Service Applications, your use of the Service Applications or any other materials or services provided to you by Skempi or any other subject matter of these Terms of Service, whether based on contract, tort, strict liability or other theory, for (i) any lost or corrupted data, lost profits, loss or damage to any computer, mobile phone or other device or any special, incidental, indirect or consequential damages, even if such parties have been advised of the possibility of such damages or if such damages were foreseeable, or (ii) the cost of procuring substitute goods, services or technology. To the maximum extent permissible under applicable law, the aggregate liability of Skempi and its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, to you or any third party in any circumstance will not exceed one hundred dollars ($100). Some jurisdictions do not allow the exclusion of incidental or consequential damages or limitation of liability, so the above exclusions and limitations may not apply to you.

15. TERMINATION

You agree that Skempi, in its sole discretion and without notice or liability to you, may terminate or suspend your use of, or access to, the Service Applications or any of the Skempi Service at any time if Skempi believes in good faith that you have violated or acted inconsistently with any provision of these Terms of Service or any applicable law, rule or regulation or that you have engaged in conduct that Skempi reasonably determines to be inappropriate or unacceptable. Skempi may in its sole discretion, and at any time, discontinue providing the Skempi Service, or any part thereof, on notice to you.

16. INDEMNITY

You agree to defend, indemnify and hold Skempi and its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, together with their respective affiliates, successors, assigns, employees, consultants, agents, directors, officers, members and stockholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to your actions or fault and arise out of (i) your access, use or misuse of any of the Skempi Service, (ii) your breach or alleged breach of these Terms of Service, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of any of the Skempi Service including, without limitation, infringement of anyone else’s intellectual property rights, or (iv) your use or disclosure of another person’s personal information including, without limitation, financial or credit information. Without limiting the foregoing, you acknowledge that certain countries may require you to pay a use, sales, consumption, value added or other tax in connection with your use of the Skempi Service. The payment of any such tax, if required, is your responsibility. The foregoing indemnity obligations will apply to any damages Skempi may incur in connection with your failure to pay any such tax.

17. COPYRIGHT INFRINGEMENT

Skempi respects the intellectual property rights of others and we ask our users to do the same. If you believe a user of the Service Applications or Skempi Service is infringing your copyright or the copyright of any third party, please notify Skempi in accordance with the following procedure: All notifications of copyright infringement must be in writing and directed to Skempi’s designated agent at the following mailing address or email address: Wielewaalplein 202, 9713BR, Groningen, The Netherlands, legal@skempi.com. Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit Skempi to locate the material, (iv) information reasonably sufficient to permit Skempi to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. In the event of any copyright or other intellectual property infringement claim, you acknowledge and agree that as between Skempi and any provider of a mobile application platform, Skempi, and not any provider of a mobile application platform, will be solely responsible for the investigation and discharge of any such claim.

18. MODIFICATIONS

Skempi may modify or update these Terms of Service at any time without notice. Any additional or different terms in these Terms of Service will be effective upon being posted on the Skempi Site. It is your responsibility to review these Terms of Service periodically. Your continued use of any of the Skempi Service following the posting of any additional or different terms in these Terms of Service constitutes your irrevocable acceptance of those additional or different terms. Skempi reserves the right to add, change, modify, suspend or discontinue all or any of the Skempi Service, in its sole discretion, at any time. Unless expressly stated otherwise, the use of any new or existing Skempi Service, including the availability of services or products through the Service Applications, will be subject to these Terms of Service. In addition, Skempi may also impose limits on any of the Skempi Service or restrict your access to portions or all of the Service Applications in its sole discretion without notice or liability. Skempi reserves the right to refuse to provide you with access to any of the Skempi Service or to allow you to create a user account for any reason.

19. EQUITABLE REMEDIES

You hereby agree that Skempi would be irreparably damaged if these Terms of Service were not specifically enforced, and therefore you agree that Skempi will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Service, in addition to such other remedies as Skempi may otherwise have available to it under applicable laws.

20. EXPORT ADMINISTRATION

You will comply fully with all relevant export laws and regulations of the territories in which the Skempi Service is made available. Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Service Applications, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

21. MISCELLANEOUS

These Terms of Service, including the Privacy Policy, Payment Terms and any other terms and conditions governing the use of the Service Applications and the Skempi Service incorporated herein or incorporating these Terms of Service, constitute the entire agreement between you and Skempi with respect to your access and use of the Service Applications and the Skempi Service and supersede all prior and contemporaneous agreements between you and Skempi relating to the same subject matter. Some jurisdictions do not allow for certain of the disclaimers, limitations and exclusions set forth in these terms of service, so the above exclusions and limitations may not apply to you. Additionally, your use of any mobile Service Application may be subject to the terms of any applicable agreement published by a mobile application platform provider or your wireless carrier. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. Skempi’s failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision and no waiver will be effective unless it is made in writing and signed by an authorized representative of Skempi. You and Skempi expressly acknowledge and agree that the language governing these Terms of Service, and the Privacy Policy, Payment Terms and any other terms and conditions governing the use of the Service Applications and the Skempi Service incorporated herein or incorporating these Terms of Service (collectively, the “Terms”), will be English. For your convenience, Skempi may provide you with a translation of the English language version of the Terms. In the event of any inconsistency between a non-English version of the Terms and the English version, the English version will govern your relationship with Skempi. In the event any litigation is brought by you or Skempi in connection with these Terms of Service, the prevailing party in such litigation will be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation. You acknowledge and agree that, although these Terms of Service are solely between you and Skempi, Skempi’s third party licensors, including, without limitation, its content providers (such as record labels, publishers, performance rights organizations and providers of data services) and its mobile application platform providers, are third party beneficiaries of these Terms of Service, and upon your acceptance of these Terms of Service, these third parties will have the right to enforce these Terms of Service as if they were original parties to this document.

22. GOVERNING LAW; JURISDICTION

If you are using the Skempi Service the following applies: These Terms of Service is governed by, and will be construed under, the laws of Amsterdam, the Netherlands, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 23 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Skempi Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Amsterdam, the Netherlands and you agree to submit to the personal jurisdiction and venue of such courts.

23. DISPUTE RESOLUTION

23.1 Negotiations

Before initiating any arbitration or court proceeding, you and Skempi agree to first attempt to negotiate any dispute, controversy or claim related to these Terms of Service (“Claim”) (except those Claims expressly provided in Section 23.6 below) informally for at least thirty (30) days. Negotiations will begin upon written notice. Skempi will send its notice to your billing or other physical address (if on file with Skempi) and email you a copy to the email address you have provided. You will send your notice to Skempi, 202, Wielewaalplein, 9713BR, Groningen, ATTN: CEO or legal@skempi.com.

23.2 Binding Arbitration

If the parties fail to resolve a Claim through negotiations within the above thirty (30) day period, you and Skempi agree that, except as provided in Section 23.6 below, all Claims will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in these Terms of Service. In the event of a conflict between the terms set forth in this Section 23 and the JAMS Rules, the terms in this Section 23 will control and prevail. Except as otherwise set forth in Section 23.6, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based.

23.3 Arbitration Fees

If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and Skempi will pay all other costs charged by JAMS for initiating the arbitration. If Skempi is initiating arbitration for a Claim, Skempi will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. Notwithstanding anything in the clause titled “Miscellaneous” above to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration.

23.4 Location

The arbitration will take place in your hometown area if you so notify Skempi in your notice of arbitration or within ten (10) days following receipt of Skempi’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Amsterdam, Netherlands, unless the parties agree to video, phone and/or Internet connection appearances.

23.5 Limitations

You and Skempi agree that any arbitration will be limited to the Claim between Skempi and you individually. YOU AND SKEMPI AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER.

23.6 Exceptions to Negotiations and Arbitration

You and Skempi agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Skempi’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in these Terms of Service, some of these provisions may not apply to you.

23.7 Severability

You and Skempi agree that if any portion this “Dispute Resolution” section is found illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect. If Section 23.6 above is found to be illegal or unenforceable then neither you nor Skempi will elect to arbitrate any Claim falling within that portion of Section 23.6 above found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction the Netherlands, and you and Skempi agree to submit to the personal jurisdiction of that court.

24. QUESTIONS

If you have any questions about these Terms of Service or your rights or Skempi’s obligations relating to any of the Skempi Service, please email us at info@skempi.com or you may contact us by mail at: 202, Wielewaalplein, 9713BR.

25. ELECTRONIC COMMUNICATIONS

You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by Skempi to show your acceptance of the Terms of Service), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Skempi Service.