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Last Updated: October 4, 2024
Cashear Music Group LLC, a Delaware limited liability company (“Cashear”, “we”, or “us”) provides access to the Cashear website, currently located at cashear.com (the “Site”), Cashear’s Digital Distribution Service (the “Distribution Service”), any and all mobile applications that Cashear may make available (the “Mobile App”), together with all enabled features, functionality and services offered by Cashear in connection with the Site, the Distribution Service, and the Mobile App (collectively, the “Services”). These Terms of Use govern and control your access and use (as a registered user or otherwise) of the Services (unless a different policy is provided on a particular website, service, or application). These Terms of Use include any additional terms, conditions, or rules that Cashear may post on the Site, provide access to, or include as part of the Services (the “Supplemental Terms”). Any and all Supplemental Terms are hereby incorporated by reference into these Terms of Use (this “Agreement”).
BY ACCESSING, BROWSING, OR USING ANY OF THE SERVICES IN ANY WAY, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY SUPPLEMENTAL TERMS, AND THE ARBITRATION AGREEMENT AND THE CLASS ACTION WAIVER LOCATED IN SECTION 31 OF THIS AGREEMENT. YOUR ACCEPTANCE OF THIS AGREEMENT CREATES A LEGALLY BINDING CONTRACT BETWEEN YOU AND CASHEAR.
Your access to and use of the Services are subject to Cashear’s our Privacy Policy [link], which is hereby incorporated by reference into this Agreement.
If you use Cashear’s Distribution Service, your access and use of the Distribution Service is also governed by the Cashear Distribution Agreement[link].
1. Your Eligibility to Use the Services
You represent that you are at least eighteen (18) years old and have the power and authority to enter into this Agreement. You also represent that you are either an individual acting on your own behalf, or the authorized agent of another individual or business.
In order to access and use certain features of the Service, you may be required to create an account (your “Account”) and select a username and password. To create an account, you must provide us with certain registration information, which must be accurate and truthful. You represent and warrant that the registration information you submit will be truthful and accurate and that, if necessary, you will update your registration information so that it remains accurate.
You shall not use a username or password that we, in our sole discretion, consider to be offensive or inappropriate. We reserve the right to refuse to create your account based on our inability to verify the authenticity of your registration information. You are responsible for all use of and activity on your User Account.
You agree that you will not sell, transfer, or attempt to assign your Account to another individual or entity without our prior written consent. Notwithstanding anything else contained in this Agreement, we reserve the right to pursue any and all claims against you and any other user of your User Account. We reserve the right to terminate your Account, in our sole discretion, at any time without notice.
3. Security and Password
You shall not create an Account for another person or entity without their permission, use another person’s Account (even with their permission) or allow another person to use your Account including an individual under age eighteen (18). You are solely responsible for maintaining the confidentiality and security of your username and password. If you know of or suspect any breach of security, including loss, theft, or unauthorized disclosure of your password or payment information, you shall immediately notify us by using the Customer Service link available on the Services. We are not responsible for any losses arising from the unauthorized use of your Account or your failure to comply with these requirements.
4. Service Fees
We may charge fees for certain options or features of the Services and we will post those fees on Cashear’s main website, cashear.com. We will determine those fees in our sole discretion, and they may be subject to change without notice to you.
5. Payment Terms
Your access to and use of certain features of the Service may be subject to fees and charges. If you authorize us to charge you fees, the payment must be made using a valid credit card or other payment method that we approve. We currently accept VISA, Mastercard, and American Express, but reserve the right to add or change acceptable payment methods. We will charge your selected payment method for such the amount of the fees (and any additional charges owed), including applicable taxes. Tax rates are determined by our third-party payment processors. Tax rates are based on the rates applicable at the time of your subscription charge. These amounts can change over time with local tax requirements in your state, or territory. Any change in tax rate may be automatically applied based on the account information you provide. If your payment method cannot be charged for any reason (such as expiration or insufficient funds), you will remain responsible for any uncollected amounts. All transactions are final, unless otherwise clearly indicated, and any refunds will be made in Cashear’s sole discretion. By authorizing us to charge your payment method, you authorize us or our third-party payment processor to use the credit card and other payment information you provide for purposes of authenticating your identity, validating your payment method, obtaining payment authorization and otherwise authorizing the relevant transaction. You consent to our use of any information provided by you, including personally identifiable information, to conduct anti-fraud checks at our sole discretion, and this authorization also applies to use by our third-party payment processor. In conducting such checks, we or our third-party payment processor may disclose, and you authorize us and our third-party payment processor to disclose, your information to credit reference and fraud prevention service providers, who may keep a record of the information disclosed. We may suspend or cancel payment if we find evidence of fraud, abuse, or unlawful or other manipulative conduct with respect to access to or use of the Services.
6. Returns
To request a return of a product or service that you have purchased from us, you must submit your request to info@cashear.com. If we authorize your request, we will provide you with a return authorization code. We will not process any return without a return authorization code.
7. Your Right to Cancel
You may cancel your Account at any time. If you do so, you will receive an automated confirmation via email that your request was received, and we will terminate your Account. You will be responsible for all fees and charges that apply to up to the time that your Account is terminated.
8. Your Privacy
Use of Services
Your use of Cashear’s Services is subject to our Privacy Policy [link], which is incorporated into this Agreement by reference. Our Privacy Policy explains how we collect, use, disclose, and protect your personal information. By using the Services, you attest that you have fully read, understand, and agree to the Terms of our Privacy Policy. If you do not agree with our Privacy Policy, please do not use our Services. Our Privacy Policy is available at [insert the actual URL where the Policy is located].
Data Collection and Use
By using our Services, you acknowledge and agree that we may collect and use your personal information in accordance with our Privacy Policy. This may include, but is not limited to, your name, email address, IP address, and usage data. We collect this information to provide and improve our Services, personalize your experience, communicate with you about our products and services, and comply with our legal obligations. We will only collect and use personal information that is necessary for the purposes outlined in our Privacy Policy.
Data Sharing and Disclosure
We may share your personal information with trusted third parties who assist us in operating our Services, conducting our business, or servicing you, as long as those parties agree to keep you personal information confidential and secure. We may also disclose your personal information if required by law, court order, or other legal processes, or to protect our rights, property, or safety, or that of our users or the public.
Data Security
We implement and maintain reasonable measures to protect your personal information from unauthorized access, alteration, disclosure, or destruction. However, no method of transmission over the internet or electronic storage is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security. In the event of a data breach that may effect your personal information, we will notify you in accordance with applicable laws and regulations.
Data Retention and Deletion
We will retain personal information only for so long as necessary to provide the Services and fulfill the purposes outlined in the Privacy Policy, unless retention is required by applicable law or regulations. Upon termination of this Agreement, we will delete the personal information in accordance with our data retention and deletion policies. Please note that some information may remain in our backup systems for a certain period of time, as necessary for legal, tax, or regulatory reasons.
Third-Party Links and Services
Our Services may contain links to third-party websites or services that are not owned or controlled by us. We have no control over, and assume no responsibility for the content, privacy policies, or practices of any third-party websites or services. By using our Services, you acknowledge and agree that we will not be liable for, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance upon any such content, goods, or services available on or through any such websites or services. We encourage you to read the privacy policies and terms of use of any third-party websites or services that you visit.
Consent and Opt-Out
By using Cashear Services, you consent to the collection, use, and sharing of your personal information as described in our Privacy Policy. You may opt-out of certain data sharing practices or update your preferences by contacting us at privacy@cashear.com or following the instructions provided in our Privacy Policy. Please note that opting out of certain data processing activities may affect your ability to use some of the features of our Services.
9. Your Information
We may collect any information, data or other content related to or derived from your access to and use of the Services. We may also collect information, data or other content in any form or medium that is submitted, posted or otherwise transmitted by you or on your behalf through the Services (“Your Information”). You hereby grant us a non-exclusive license and right to use, copy, host, store, display, transmit and process Your Information as necessary for us, our employees and contractors to provide the Services pursuant to this Agreement and in accordance with applicable law.
10. Term of this Agreement
The “Term” of this Agreement will begin when you first access the Services and will continue until it is terminated by either party.
11. Territory
The “Territory” of this Agreement is the universe.
12. Termination and Suspension of Service
If you fail, or we suspect that you have failed to comply with any of this Agreement, we may, without notice to you: a) Terminate your Account, in which case you will remain responsible for any amounts due under your Account up to and including the date of termination; and b) Prevent your access to the Service.
13. Consent to Electronic Communications
You hereby consent to receive electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information related to the Services.
14. Our Agreements with Third Parties
You acknowledge that in order to provide certain features of the Services and to process payments under this Agreement, we will enter into certain agreements with various third parties including digital music service providers, social media platforms, and user generated content sites. We will select those third parties in our sole discretion. You agree that this Agreement will be subject to any applicable terms and conditions of such other agreements that we enter into with respect to such third parties.
15. Your Right to Use the Services
Subject to this Agreement, we grant you the non-exclusive, non-sublicensable, non-transferable right to access and use the Services solely for your own personal use. Cashear may revoke this right and any other rights granted to you by this Agreement at any time, in its sole discretion.
16. Documentation
We may provide you with guides, user instructions, or other information or materials regarding the capabilities, operation, and use of the Services (“Documentation”). Subject to this Agreement, where and to the extent that we provide Documentation, we hereby grant you a non-exclusive, non-sublicensable, non-transferable license to use the Documentation solely for your personal or internal business purposes in connection with your use of the Services.
17. Use of The Mobile App
When you download the Mobile App under this Agreement you are granted a non-exclusive, non-sublicensable, non-transferable right to access and use the Services on a computer, tablet or mobile device that you own or control. If you have accessed or downloaded the Mobile App from any “app” store or distribution platform, such as the Apple App Store or Google Play (“App Provider”), you acknowledge and agree that: (i) this Agreement and the rights granted to you under this Agreement are between you and us only and we are solely responsible for the Mobile App; (ii) the App Provider has no obligation to furnish any maintenance and support services for the Mobile App; (iii) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile App or your possession and use of the Mobile App; (iv) the App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as related to your license of the Mobile App; and that, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Mobile App against you as a third party beneficiary thereof; and (v) you will comply with all applicable third party terms of service when using the Mobile App, including any applicable App Provider terms of service. The Mobile App may automatically download and install updates from time to time. These updates are designed to improve, enhance and further develop the Mobile App and may take the form of bug fixes, enhanced functions, new software modules and new versions.
18. Restrictions on Your Use of the Services
You shall not use the Services for any purposes beyond the limited scope of this Agreement. You shall not use the Services for any unlawful purpose, for the facilitation of the violation of any law or regulation, or in any manner contrary to this Agreement. You agree not to use, transfer, distribute, or dispose of any information contained in or available from the Services in any way that competes or could compete with our business. We may monitor your use of the Services to confirm that you are complying with this Agreement.
Except as we may expressly permit in writing, you shall not or permit a third party to:
(A) Transfer, sell, license, sublicense, distribute, publish, display, store, copy, modify, merge, perform, transmit, edit, post to, upload to, frame, link to, translate, create derivative works from, decompile, decode or disassemble, reverse engineer, remove any proprietary notices from, or in any way exploit the Services, or any content accessed or downloaded from the Services, in whole or in part, or use the same as a component of any other product, service or material;
(B) Use or provide the Services on a white-labeled or re-branded basis, or otherwise, for the benefit of any third party;
(C) Run or install any software or hardware on the Services or our network;
(D) Mine, scrape, index, or automatically download any content, information, data, or other materials available on the Services;
(E) Automatically connect (whether through APIs or otherwise) any content, information, data, or other materials available on the Services to other data, software, Services or networks;
(F) Introduce malicious code, software or technologies into the Services;
(G) Use the Services or any content, information, or intellectual property available on the Services, including any third-party’s content, information or intellectual property to train any artificial intelligence (AI) or machine learning models, algorithms, software, device, system or service.
19. Third-Party Services
The Services may make available links to websites, content, products, or services provided by third parties (“Third-Party Services”). The availability of such links, however, does not imply Cashear’s endorsement of the goods, services, or materials available on such Third-Party Services. Moreover, you understand, acknowledge and agree that Cashear is not the source of and is not responsible for any Third-Party Service or its transactions or other activities. If you choose to use any Third-Party Service, your use of it will be subject to any terms and conditions established and required by the third party.
20. User Material and User Activity
The Services may allow users to submit, upload, store and/or share audio recordings, musical compositions, audio-visual content, images, photographs, artwork, messages, comments, questions, text, information, materials or other content (“User Material”) through the Service, and may enable user to share such User Material using certain features of the Services. Certain features of the Services may allow registered users to make certain User Material publicly available for other users (registered or unregistered) to view, listen to and share. Other features of the Services may enable users to privately submit and share messages between users (“Direct Messages”) or to upload files to store and share for private use. In this section and throughout this Agreement, the activities described above are collectively referred to as “User Activity”. You are solely responsible for your User Activity including the User Material you submit through the Services.
For the purposes of and in connection with this Agreement, you understand, acknowledged and agree that you shall not submit User Material or Direct Messages, or take part in any User Activity that:
(A) Contains any information, material or content that you know, or that a reasonable person under your circumstances should know, is not correct or current.
(B) Contains any information, material or content that you do not have the right to make available under any law or under contractual or fiduciary relationships.
(C) Contains any information or content that is unlawful to disclose including insider information under securities law or the proprietary information or trade secrets of a business, individual or other party.
(D) Contains any information or content that Cashear deems to be unlawful, libelous, profane, racially or ethnically offensive, abusive, harassing, harmful, infringing, defamatory, offensive, invasive of the personal privacy or publicity rights of any person or group, humiliating to other people (publicly or otherwise), threatening, otherwise objectionable or content that may be deemed to constitute “hate speech.”
(E) May be a crime or tort in the applicable jurisdicition(s).
(F) Seeks to exploit or harm children by exposing them to inappropriate content, asking for personal information or otherwise.
(G) May create a risk of harm, loss, physical or mental injury, emotional distress, death or physical or mental illness to you, to any other person, or other third party.
(H) May otherwise create a risk of loss or damage to any person or property.
21. Risk and Responsibility
For purposes of and in connection with this Agreement, you understand, acknowledge, and agree that:
(A) You may be exposed to User Material that is inaccurate, offensive, indecent, or otherwise objectionable to you, and you agree that Cashear will not be liable for any damages you allege to incur as a result of such User Material.
(B) Any loss or damage of any kind that occurs as a result of the use of any User Material or Direct Messages that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility.
(C) With respect to the User Material that you post, upload, or otherwise provide to us in connection with the Services, Cashear is only acting (at your direction) as a passive conduit for your online distribution, storage, publication and/or other exploitation of your User Material.
(D) Cashear is not responsible for any public display or misuse of your User Content.
(E) As between Cashear and you, unless otherwise agreed between us in writing, Cashear does not claim any ownership of your User Material.
(F) Cashear is not and will not be responsible for payments or any other obligation or liability to any third party in connection with the use of your User Material on any part of the Services, including the Site, Mobile App, and Distribution Service or otherwise in connection with this Agreement.
(G) Cashear disclaims all responsibility and assumes no liability for any User Material and/or Direct Messages that you or any other users or third parties post, use, store or share through the Services.
22. Representations and Warranties
For the purposes of and in connection with this Agreement, you agree, represent, and warrant that:
(A) Your User Material is original with you, in the public domain throughout the world or used by you with the express consents, permissions or licenses necessary from the original owner(s) of such content for use by you and us pursuant to this Agreement;
(B) Your User Material does not and will not violate third-party rights of any kind, including any rights in and to Intellectual Property (as defined below) or rights of publicity or privacy of any individual, business, or other entity;
(C) Your User Material or Direct Messages will not contain material which is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, otherwise objectionable or content that may be deemed to constitute “hate speech.”
(D) For the purposes of Cashear’s operating and enabling the Direct Messages feature of the Services, you grant to us a non-exclusive, transferable, fully paid, worldwide license to use, host, store, search, scan and to share at your direction such Direct Messages and/or User Material, until you delete same from the applicable part of the Services or until the Direct Message and/or User Content are otherwise permanently removed.
(E) When you upload, publish, modify, display or otherwise submit User Material to or on any part or area of the Services (excluding Direct Messages) you automatically grant, and you represent and warrant that you have the right to grant, to Cashear, as well as to other users of the Services, a non-exclusive, transferable, fully paid, worldwide license to use, copy, reproduce, publicly perform, publicly display, communicate to the public, stream, listen to, make available, reformat, translate, excerpt (in whole or in part), transmit, re-post and distribute such User Material for any purpose on or in connection with the Services.
Cashear reserves the right to reject and/or remove any User Material, Direct Messages or other content that Cashear concludes, in its sole discretion, violates these provisions.
For the purposes of and in connection with this Agreement, “Intellectual Property” means all algorithms; API’s; databases and data collections; ideas and inventions (whether or not patentable or reduced to practice); designs; procedures; processes; protocols; patents; know-how; copyrights; mask works; moral rights; rights of publicity; trademarks, trade dress right and service mark rights (including brand names, product names, logos, and slogans); goodwill; trade secrets; software code (in any form including source code and executable or object code), specifications; works of authorship; and other intellectual property as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, and other forms of technology or intellectual property under the laws of any state, country, territory or other jurisdiction.
23. Restricted Persons
You represent and warrant to Cashear that you (a) are not designated on any sanctions- or export- related list of restricted or blocked persons, including designation on the U.S. Department of the Treasury Office of Foreign Asset Control's (“OFAC”) List of Specially Designated Nationals and Blocked Persons, (b) are not located in, organized under the laws of, or resident in any country or territory that is itself the subject of any economic or financial sanctions by any U.S. or other relevant governmental authority, including, but not limited to, Cuba, Iran, Syria, North Korea, Venezuela and the Crimea Region of Ukraine, (c) are not greater than 50% owned or controlled by any persons described in clause (a) or (b) (collectively with (a) and (b), a “Restricted Person”), (d) will not violate or cause Cashear to violate any economic sanctions, including those administered by OFAC, in connection with the Services, and (e) will notify Cashear immediately of any breach of the terms described in clauses (a) through (d).
24. Use of the Services Outside the U.S.
The Services are controlled, operated, and offered by Cashear from its facilities in the United States of America. We make no representation that the Services, including any material or items offered for sale on the Services and their respective copyrights, trademarks, patents, and licensing arrangements, are available or appropriate for use outside the United States. If you access the Services from outside of the United States you do so on your own initiative and at your own risk, you are solely responsible for complying with local laws, to the extent they may be applicable, and to the extent permitted in the jurisdiction where you are located, you waive your right to assert claims, exercise rights, or invoke protections provided in that jurisdiction which are not available in the United States of America.
25. Interruptions of Service
The Services may experience temporary interruptions due to technical difficulties, maintenance or testing, or updates, including those required to comply with changes in relevant laws and regulatory requirements.
26. Ownership of Intellectual Property
You agree that the Services, including the content, graphics, design, compilation, the selection, sequence, “look and feel” and arrangement of items, user interface, features, audio and video clips or programs, information, articles, editorial content, Documentation, and the software and scripts used to implement and provide the Services are owned by us and/or our licensors, and is protected by applicable intellectual property and other laws, including copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement. All Cashear trademarks, service marks, trade names, logos, and domain names (“Protected Marks”) that belong to us or any other parties that appear on or are used in connection with the Services are and will remain the sole property or Cashear or their respective owners. This Agreement do not grant you the right to use the Protected Marks whether for commercial or non-commercial use.
If we make any software available to you that is capable of being downloaded, including the Mobile App, then the software and all files, images and data relating to the software will be licensed to you by us. This license is a personal, limited, non-transferable, non-sublicensable, revocable license, and we reserve the right to alter or revoke the license at any time by providing notice to you. Upon receiving notice of revocation, you must destroy all copies of the software in your possession and/or residing on systems under your control. You do not own the downloaded software, and we do not transfer ownership of the software to you. We retain full ownership of, and title to, the downloaded software and all intellectual property rights related thereto. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form (except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation). Software that is downloaded from the Distributor Sites is subject to United States export control laws. If you download software from the Services, you represent and warrant to us that you are not acting in violation of those laws.
If you are a copyright owner or an agent of an owner, and believe that any User Material or other content displayed or distributed by the Services infringes upon your copyright, you may submit a notification pursuant to Section 17 U.S.C. 512(c)(3) of the United States Copyright Act, known as the Digital Millennium Copyright Act (“DMCA”) by completing a DMCA Notification of Claimed Infringement (the “Notification”) as described below and delivering it to Cashear’s Designated Copyright Agent (identified below). Please be aware that under 17 U.S.C. 512(f) any person who knowingly materially misrepresents that material is infringing may be liable for money damages.
To be effective, the Notification must be a written communication provided to Cashear’s Designated Copyright Agent that includes the following:
· Your name, address, telephone number, and email address;
· A description of the copyrighted work that you claim has been infringed;
· The exact URL or a description of where the alleged infringing material is located;
· A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
· A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please deliver the Notification to Cashear’s Designated Copyright Agent at:
Copyright Agent
Cashear Music Group, LLC
393 Broadway, 4th Floor
New York, NY 10013
legal-notices@cashear.com
Failure to include all of the above information, especially specific information about where infringing content may be found, will result in a delay in the processing of your notification and may result in your having to repeat some or all of the above process.
Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
27. Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK AND ACKNOWLEDGE THAT THE SERVICES AND ANYTHING CONTAINED WITHIN THE SERVICES, INCLUDING CONTENT, SERVICES, GOODS OR ADVERTISEMENTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOU AGREE THAT WE MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES, INCLUDING MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE AVAILABILITY OR FUNCTIONS CONTAINED IN THE SERVICES OR THE SERVICES THEMSELVES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES DO NOT VIOLATE ANY PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTS REGARDING THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
28. Indemnification
You agree to indemnify, defend, and hold harmless Cashear, its third-party providers, directors, officers, employees, agents, representatives, successors, and assigns (the “Indemnified Parties”) from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and expert’s fees) arising out of or in connection with the Services or any links on the Services, including: (a) Any breach of any promise, covenant, or obligation that you are to perform or fulfill under this Agreement; (b) Your misrepresentation or breach of any representation or warranty you made under this Agreement; (c) Any deletions, additions, insertions or alterations to, or any unauthorized use of the Services by anyone using your computer, device and/or User Account; (d) A claim that any use of the Services by anyone using your computer, device and/or User Account infringes any intellectual property right of a third party, or any right of publicity or privacy, is defamatory or libelous, or otherwise results in injury or damage to a third party; (e) A violation of this Agreement by anyone using your computer, device and/or User Account; (f) Anyone’s use of your computer, device, and/or User Account to access and/or use the Services.
With respect to claims against the Indemnified Parties, you agree to pay all costs, damages, and expenses, including reasonable attorney’s fees and costs awarded against or otherwise incurred by the Indemnified Parties arising from or in connection with any such claim, suit, action, or proceeding related to such claim. Cashear reserves, at its own expense, to assume the exclusive defense any control of any matter subject to subject to your indemnification obligation under this Agreement. In such event, you will fully cooperate with Cashear in asserting any available defense. You agree to pay Cashear reasonable attorney’s fees and expert’s fees incurred in connection with any lawsuits that Cashear brings against you under this Agreement and any other terms and conditions of service for the Services, including lawsuits arising from your refusal or failure to indemnify an Indemnified Party pursuant to this Agreement.
29. Limitation of Liability
Under no circumstances shall Cashear, its parents, affiliates, subsidiaries, third-party providers, directors, officers, employees, representatives, agents, licensors, successors, and assigns be liable to you or any third party for damages of any kind, whether based in tort, contract, strict liability or otherwise, including any direct, indirect, incidental, consequential, special, punitive, or exemplary damages even if Cashear has been advised specifically of the possibility of such damages, arising in any way from or in connection with the Services, use of or inability to use the Services or any links or items on the Services or any term or condition of this Agreement, loss of revenue or anticipated profits or lost business. Applicable law may not permit the limitation or exclusion or liability or incidental or consequential damages. In no event shall Cashear’s total liability to you for all damages, losses, and causes of action, whether in contract or tort, exceed the lesser of one hundred dollars (U.S. $100) or the amount paid by you, if any, for accessing the Service. By accessing the Service, you acknowledge that you may be waiving rights with respect to claims that currently unknown to you or unsuspected, and accordingly you acknowledge that you have read and understand, and hereby expressly waive, the benefits of Section 1542 of the California Civil Code (and any similar law of any state or territory), which states as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You hereby waive any rights you have or may have under California Civil Code Section 1542 and/or any similar provision of law or successor statute to it, with respect to any claims you may have in connection with the Service or this Agreement.
In connection with this waiver and release, you understand and acknowledge that you may hereafter discover claims currently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend to release fully, finally, and forever all such matters under this Agreement.
You acknowledge and agree that Cashear has offered its Service entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Cashear, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Cashear. You acknowledge and agree that Cashear would not be able to provide the Service to you on an economically reasonable basis without these limitations.
30. Mandatory Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT
TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.
(A) Informal Dispute Resolution Procedure
If a Dispute (as that term is defined below) arises between you and Cashear, we are committed to working with you to try to reach a reasonable resolution. For any such Dispute, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. Such informal resolution requires first sending a written description of the dispute to the other party. For any Dispute you initiate, you agree to send the written description of the Dispute along with the email address associated with your account, if applicable, to the following email address: legal-notices@cashear.com. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; the specific relief sought (what you are asking for); and proof of your relationship with Cashear. If the Dispute is not resolved within sixty (60) days after Cashear’s receipt of your written description of the Dispute, you and Cashear agree to the pursue the additional Dispute resolution provisions below.
This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding including arbitration or litigation. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled (suspended) while the parties engage in this informal dispute resolution process.
(B) Mutual Arbitration Agreement
If the informal dispute resolution process does not lead to resolution of the Dispute, then either party may initiate binding arbitration as the sole means to resolve Disputes (except as otherwise provided in this Agreement), subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to legal-notices@cashear.com. If you are a Cashear registered user, any demand initiating arbitration, whether filed by you or Cashear, must include the email address you used to register with Cashear.
You agree that by accessing or using any of the Services in any way, you unconditionally consent and agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Cashear and/or its parent, subsidiaries, affiliates and each of their respective current or former members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “Cashear Entities”) arising out of, relating to, or connected in any way with Cashear’s website(s), Distribution Service, Mobile App, this Agreement, including the determination of the scope, enforceability, or applicability of this Arbitration Agreement (as defined below), including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) (“Dispute”) will be resolved exclusively by final and binding arbitration in accordance with this Section of this Agreement (“Arbitration Agreement”). This includes claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in this Section 30 (Mandatory Arbitration and Class Action Waiver). This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. Sections 1-16.
Notwithstanding the parties’ decision to resolve all Disputes through arbitration, you and Cashear each retain the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
(C) Class Arbitration and Collective Relief Waiver
YOU AND CASHEAR ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN SUBSECTION (D) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR COLLECTIVE ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS CASHEAR PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
With the exception of this Subsection (C) and Subsection (D) below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, this Subsection (C) or Subsection (F) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Cashear shall be entitled to arbitrate their dispute.
(D) Arbitration Rules
The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.
(E) Arbitration Location and Procedure
For all U.S. residents, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in New York City, New York (unless otherwise agreed by the parties). The arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Cashear submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Cashear (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
(F) Batch Arbitration
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Cashear (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Cashear and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Cashear and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Cashear otherwise consents in writing, Cashear does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Subsection (F). If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this subpart (vi) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Cashear shall be entitled to arbitrate any claim that is a part of the Mass Filing.
(G) Mediation Following First Batch in a Mass Filing
The results of the first batch of demands will be given to a NAM mediator selected from an initially proposed group of 5 mediators, with Cashear and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Cashear, the mediator and the remaining claimants will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If they are unable to resolve the outstanding demands during the Mediation Period and cannot agree on a methodology for resolving them through further arbitrations, either Cashear or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Cashear nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Opt out of arbitration under this section shall not be construed as opt out of Section 31 titled “Class Action Waiver” below. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
(H) Arbitrator’s Decision
The arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the “Disclaimer” and “Limitation of Liability” sections of this Agreement as to the types and the amounts of damages or other relief for which a party may be held liable. Except for decisions in arbitrations that are joined together in a single batch, no individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.
(I) Fees
If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Cashear will pay any filing and hearing fees in in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.
The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in subpart (vi)) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
(J) 30-Day Right to Opt Out
You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to legal-notices@Cashear.com with the subject line, “ARBITRATION OPT-OUT”. The notice must be sent within thirty (30) days of (a) October 1, 2024; or (b) your first use of the Service, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, Cashear also will not be bound by it.
(K) Changes
Cashear will provide thirty (30) days’ notice of any material changes to this “Mandatory Arbitration and Class Action Waiver” section. Any such changes will go into effect 30 days after Cashear provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If Cashear changes this “Mandatory Arbitration and Class Action Waiver” section after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes.
31. Class Action Waiver
You may only resolve Disputes with Cashear on an individual basis and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated, or representative action. Except as described in Subsection 30 (F), class actions, class arbitrations, collective actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
PART G – GENERAL TERMS AND CONDITIONS
32. Modification of This Agreement
Cashear reserves the right to change, modify, amend, remove or add to this Agreement at any time for any reason including to comply with changes in applicable law. Such modifications will be effective immediately. We will indicate revisions to this Agreement by changing the “Last Updated” date at the top of this Agreement. Please check this Agreement from time to time so that you will be aware of any changes, because your continued access, use or link to the Services after any modification will constitute your binding acceptance of and agreement with such changes. For any changes that we deem to be material, we may use reasonable methods to provide notice to you through your User Account, sending you an email message at the address you have provided, or other reasonable methods. If at any time you do not accept and agree to this Agreement, you may no longer use the Services and must immediately stop using them.
33. Relationship of the Parties
You agree that your use of the Services or entry into this Agreement does not create a partnership, joint venture, agency or employment relationship between you and Cashear. You agree that your submission of User Material for use on the Services, your use of Direct Messages or your use of any other feature of the Services does not create a fiduciary, confidential, contractually implied or other relationship between you and Cashear other than pursuant to this Agreement.
34. Governing Law and Jurisdiction
The Agreement will be governed by and interpreted in accordance with the law of the United States and the State of New York, without giving effect to any jurisdiction’s conflict of principles. With respect any dispute, claim, or controversy that in any way relates to or arises in connection with this Agreement, our Privacy Policy, our Distribution Agreement or your relationship with us as a user (registered or unregistered) of the Services (a “Covered Dispute”), to the extent that such a Covered Dispute is not subject to the mandatory arbitration provision in Section 30 of this Agreement, including those regarding the breach or interpretation of this Agreement, you hereby irrevocably submit to the exclusive personal and subject matter jurisdiction of the federal and state courts located in New York County, New York and waive any jurisdictional, venue or inconvenient forum objections to such courts. To the extent permitted by applicable law, you agree to waive any right to a jury trial.
If a court of court of competent jurisdiction finds that you are not barred from bringing a legal action against Cashear in connection with your use of the Services, you agree that any cause of action brought by you against Cashear must commence within one (1) year after the cause of action accrues or such action is permanently barred. Moreover, you agree that you may only bring a cause of action against Cashear with whom you have or had a contractual relationship at the time of the occurrence of the event giving rise to such cause of action.
35. Assignment
Except as otherwise provided in this Section, neither party to this Agreement may assign or transfer (by operation of law or otherwise) any right or obligation under this Agreement. Cashear may assign all or any part of this Agreement and may assign or delegate, in whole or in part, any of our rights or obligations under this Agreement. Cashear may subcontract any portion of the Services in our sole discretion. You shall not assign this Agreement, in whole or in part, nor sublicense your rights under this Agreement to any third party, and any purported assignment will be void and of no effect.
36. No Waiver
No waiver or any provision, right or remedy by Cashear should be considered to be a further or continuing waiver of any provision, right, or remedy, and Cashear’s failure to assert any provision, right or remedy under this Agreement will not constitute a waiver of such provision, right or remedy.
If either party delays or fails to exercise any right or remedy under this Agreement, it will not have waived that right or remedy.
37. Severability
If any portion of this Agreement is held invalid or unenforceable for any reason or to any extent, the remaining provisions of this Agreement will not be affected, and the application of that provision will be enforced to the extent permitted by law.
38. Survival
You agree that any provision of this Agreement that by their nature would survive termination of this Agreement will survive any termination of this Agreement or your account, whether by you or Cashear.
39. Notices
Cashear may notify you regarding the Services by sending an email message to your email address or by sending a letter by postal mail to your mailing address, or by a posting on the Services. Our notices will be effective upon sending or posting. We may also contact you by email or posting to send you additional information about the Services.
40. Section Headings
The part and section headings in this Agreement are intended to be for convenience in reading only and are not intended to have any have any legal effect upon any of the provisions of this Agreement.
41. Entire Agreement
Except as expressly agreed upon in writing signed by you and Cashear, this Agreement constitutes all the terms and conditions agreed upon by you and Cashear and supersedes and replaces any prior agreements in relation to the Services and any other subject matter of this Agreement, whether written or oral. You acknowledge that in entering to this Agreement you have not relied on any representations made that are not expressed in this Agreement.
