Last updated: July 13, 2016
THESE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT THE SERVICE IS PROVIDED AS IS AND WITHOUT WARRANTY (SECTION 17), (2) YOUR AGREEMENT THAT BUSKER HAS NO LIABILITY REGARDING THE SERVICE (SECTION 18), (3) YOUR CONSENT TO RELEASE BUSKER FROM LIABILITY BASED ON CLAIMS BETWEEN USERS (SECTION 4) AND GENERALLY (SECTION 18), (4) YOUR AGREEMENT TO INDEMNIFY BUSKER FROM CLAIMS DUE TO YOUR USE OR INABILITY TO USE THE SERVICE (SECTION 19), (5) YOUR CONSENT THAT EITHER PARTY HAS THE RIGHT TO COMPEL ARBITRATION (SECTION 20), AND (6) YOUR CONSENT THAT NO CLAIMS CAN BE ADJUDICATED ON A CLASS BASIS (SECTION 20).
Busker Facilitates the Direct Support of Musicians by their Fans
Busker is a platform that facilitates direct financial support of Musicians. Through the Site, email, websites, and other media, the Service makes accessible various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, projects, other material and information, and associated trademarks and copyrightable works (collectively, Content). Content Musicians, Artists, Supporters, and other visitors to and users of the Service (collectively, Users) may have the ability to contribute, add, create, upload, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible (Submit) Content. User Submissions means any Content Submitted by Users.
Busker Only Provides a Venue
The Service is a communications platform for enabling connections between Users. Busker does not take part in the interaction between Users. Busker does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any ratings provided by Users, Content provided by Users, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Users. Busker does not have control over the quality, timing or legality of Content delivered by its Users. Busker makes no representations about the suitability, reliability, timeliness, or accuracy of the Content requested and provided by Users identified through the Service whether in public, private, or offline interactions. Busker cannot confirm that each User is who they claim to be. Busker does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Service.
When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER BUSKER NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE. BUSKER AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE.
Users of the Service tip other Users. Busker will not be a party to any transactions. Busker merely facilitates these transactions by supplying a medium for the exchange of money. Payment will be processed immediately and distributed each month. Musicians who create rewards chosen by Users are required to provide those rewards. Any payment in cash outside of the Service are NOT subject to refunds. Any reimbursement expenses that are incurred by a User in connection with the completion of a service, however, may be paid in cash offline or through the Service.
Billing and Payment Policy
For all tips, Busker will charge your credit card according to the amount agreed upon between you and Busker for the use of the Service, and you hereby authorize us to charge your credit card for such amounts. Busker retains the right, in its sole discretion, to place a hold on any payment. Busker has no obligation to provide refunds or credits to payments already made to Musicians, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Busker, in each case in Busker’s sole discretion.
You will be liable for all transaction taxes on the services provided under this Agreement (other than taxes based on Busker’s income).
Personal Information. Busker collects personal information only if you voluntarily choose to share such information with Busker. You may browse the Site without disclosing any personal information. However, in order for you to take advantage of particular opportunities provided through the Service, we may require that you furnish personal information. When you register your account, sign up for newsletters, complete forms for optional programs, surveys, contests and other entries, and through communications transmitted through Busker, applications and your use of the Busker mobile application, we collect information including your name, address, phone number and email address. You also may choose to send Busker personally identifying information in an email message containing information or inquiries about the Service.
By using the Service, you agree to let Busker process and use the data obtained through usage of the Service. This processing and usage may include, but is not limited, to: providing our products and the Service, for billing, identification and authentication, and fraud prevention, to analyze Site usage and improve our products and the Service, to contact you and deliver administrative notices and communications relevant to your use our products and services, to enforce our Terms of Service, and to market the Service.
The Service is only a venue for connecting Users. Because Busker is not involved in the actual contact between Users and in the event that you have a dispute with one or more Users, you release Busker (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Busker expressly disclaims any liability that may arise between Users of its Service.
The Service may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (Public Areas) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. Without limitation, you may not:
1. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others.
2. Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
3. Use the Service for any purpose, including, but not limited to posting or creating content, in violation of local, state, national, or international law.
4. Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
5. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
6. Advertise or offer to sell any goods or services for any commercial purpose through the Service which are not relevant to the services offered through the Service.
7. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
8. Impersonate another person or allow any other person or entity to use your identification to post or view comments.
9. Post the same note repeatedly (referred to as ‘spamming’). Spamming is strictly prohibited.
10. Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Service.
11. Restrict or inhibit any other User from using and enjoying the Public Areas.
12. Imply or state that any statements you make are endorsed by Busker without the prior written consent of Busker.
13. Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Service in any manner.
14. Hack or interfere with the Service, its servers or any connected networks.
15. Adapt, alter, license, sublicense or translate the Service for your own personal or commercial use.
16. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Busker.
17. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
18. Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
All submissions made to Public Areas will be public, and Busker will not be responsible for the action of other Users with respect to any information or materials posted in Public Areas.
Account, Password, and Security
You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Busker for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account. Busker has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Busker immediately.
Links to Other Web Sites
Links (such as hyperlinks) from the Service to other sites on the Web do not constitute the endorsement by Busker of those sites or their content. Such links are provided as an information service, for reference and convenience only. Busker does not control any such sites, and is not responsible for their content. The existence of links on the Service to such websites (including without limitation external websites that are framed by the Service as well as any advertisements displayed in connection therewith) does not mean that Busker endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Service, you may link your account with online accounts you may have with third party service providers (each such account, a Third Party Account) by either: (i) providing your Third Party Account login information through the Service; or (ii) allowing Busker to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Busker and/or grant Busker access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Busker to pay any fees or making Busker subject to any usage limitations imposed by such third party service providers. By granting Busker access to any Third Party Accounts, you understand that (i) Busker may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the SNS Content) so that it is available on and through the Service via your account, including without limitation any friend lists, and (ii) Busker may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Service. Please note that if a Third Party Account or associated service becomes unavailable or Busker’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Service. You will have the ability to disable the connection between your account on the Service and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Busker makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Busker is not responsible for any SNS Content. You acknowledge and agree that Busker may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Service. At your request made via e-mail to email@example.com, Busker will deactivate the connection between the Service and your Third Party Account and delete any information stored on Busker’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
Without limitation, the Service may not be used to solicit for any other business, website or service. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Service facilitated through Buskeronline.net without express written permission from Busker.
You may not use the Service to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Busker.
Your Information is defined as any information and materials you provide to Busker or other Users in connection with your registration for and use of the Service, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as User Generated Content. You hereby represent and warrant to Busker that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Busker or cause Busker to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Service hosts User Generated Content relating to reviews of specific Users. Such reviews are opinions and not the opinion of Busker, have not been verified by Busker and each User should undertake their own research to be satisfied that a specific Content Creator is someone that User is willing to sponsor. You agree that Busker is not liable for any User Generated Content.
You hereby grant Busker a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Service.
Employment and Withholding
The Service is not an employment service and does not serve as an employer of any User. As such, Busker will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of Users’ services. You understand and agree that if Busker is found to be liable for any tax or withholding tax in connection with your use of Users’ services, then you will immediately reimburse and pay to Busker an equivalent amount, including any interest or penalties thereon.
Termination and Suspension
Busker may terminate or suspend your right to use the Service at anytime for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.
Without limitation, Busker may terminate or suspend your right to use the Service if you breach any term of this Agreement or any policy of Busker posted through the Service from time to time, or if Busker otherwise finds that you have engaged in inappropriate and/or offensive behavior. If Busker terminates or suspends your right to use the Service for any of these reasons, you will not be entitled to any refund of unused balance in your account. In addition to terminating or suspending your account, Busker reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Service is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of the Service. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively Proprietary Material) that Users see or read through the Service is owned by Busker, excluding User Generated Content that Busker has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Busker owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Service without Busker’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Busker and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Busker, including without limitation Busker and the Busker logos are service marks owned by Busker. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Copyright Complaints and Copyright Agent
Busker respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Busker’s Copyright Agent at: Busker LLC, 2097 n Stave, Chicago, IL 60647 or firstname.lastname@example.org:
1. A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Busker to locate the material, and explain why you think an infringement has taken place;
2. A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
3. Your address, telephone number, and e-mail address;
4. 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;
5. A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
6. An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Busker and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Busker in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Busker upon termination of this Agreement for any reason whatsoever. The term Confidential Information shall mean any and all of Buske’s trade secrets, confidential and proprietary information and all other information and data of Busker that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BUSKER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. BUSKER DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND BUSKER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER BUSKER NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY CONTENT CREATION OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER BUSKER NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER BUSKER NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
BUSKER AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A USER MAY USE TO EXPEDITE CONTENT CREATOR SELECTION, EACH USER IS RESPONSIBLE FOR SELECTING THEIR CONTENT CREATOR AND NEGOTIATING TERMS OF WORK AND BUSKER DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A USER AND DOES NOT RECOMMEND ANY PARTICULAR CONTENT CREATOR. BUSKER DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY CONTENT CREATOR’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENCE.
YOU ACKNOWLEDGE AND AGREE THAT BUSKER IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD BUSKER, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, LIABILITIES) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY BUSKER OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL BUSKER, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
BUSKER DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICE.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT BUSKER OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO BUSKER DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Busker, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with your use or inability to use the Service. Busker reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Busker.
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (Dispute), you and Busker agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Busker. Busker’s address for such notices is Busker LLC, 2097 N Stave #1, Chicago, IL 60647 Attention: Legal.
BINDING ARBITRATION. If you and Busker are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the AAA Rules) of the American Arbitration Association (AAA) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (AAA Consumer Rules), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed $10,000, Busker will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Busker may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in Cook County, Illinois with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and Busker agree that any arbitration will be limited to the Dispute between Busker and you individually. YOU ACKNOLWEDGE AND AGREE THAT YOU AND BUSKER ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Busker otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Dispute Resolution Section will be deemed null and void.
LOCATION OF ARBITRATION. Arbitration will take place in Cook County, Illinois. You and Busker agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Illinois state and Federal courts located in Chicago, Illinois have exclusive jurisdiction and you and Busker agree to submit to the personal jurisdiction of such courts.
You and Busker agree that, other than as set forth under the subsection entitled Waiver Of Right To Be A Plaintiff Or Class Member In A Purported Class Action Or Representative Proceeding in Section 20 above, if any portion of Section 20 entitled Dispute Resolution is found illegal or unenforceable, that portion will be severed and the remainder of the section will be given full force and effect. Notwithstanding the foregoing, if the subsection entitled Exceptions to Alternative Dispute Resolution in Section 20 is found to be illegal or unenforceable, neither you nor Busker will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Chicago, Illinois, and you and Busker agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Illinois, without regard to choice of law principles.
Busker may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Busker, and can be activated, modified or removed at anytime by Busker without advance notification.
No independent contractor, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Failure by Busker to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and Busker with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of Busker, its successors and assigns.
Changes to this Agreement and the Service
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.