Incantio, Inc. ("Incantio," "we," "us" or "our") is a service for artists who make and own songs and creators who want to use them in their creative projects. Our service allows holders of rights in sound recordings and the musical works embodied in them (together "Track(s)") to license Tracks to third parties. We also assist companies and individuals who want to use Tracks to identify those Tracks and obtain any necessary licenses to use those Tracks. The services offered by Incantio include the website located at www.incantio.com (the "Site") and any services, features, content, and applications offered from time to time by Incantio in connection with the Site (each, a "Service," and collectively, the "Services").
These Terms of Use (this "Agreement") constitute a binding legal agreement between you and Incantio and applies to your access of the Site and use of the Services.
This Agreement includes Incantio's policy for acceptable use of the Site and the Services, your rights, obligations and restrictions regarding your use of the Site and the Services, and Incantio's Privacy Policy, which discusses and governs our collection and use of any information you submit to us through the Site or the Services, and which is hereby incorporated herein by reference.
(a) Please read this Agreement carefully. You must accept all of the terms and conditions contained in this Agreement before accessing or using the Site or the Services. If you do not accept this Agreement, you must leave the Site and discontinue use of the Services immediately. By accessing the Site or using the Services, you acknowledge that you have read, understand and agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the Site) or you are a "Member" (which means that you have created an "Account"). The term "User" refers to a Visitor or a Member.
(b) We may modify this Agreement from time to time by posting the amendment(s) on the Site, and such modifications shall be effective upon such posting. Our right to modify this Agreement includes the right to add, remove or amend the terms hereof. By accessing the Site or using the Services after any such modification, you agree to be bound by all such modifications from the time of such access or use.
(c) You are authorized to access the Site and use the Services only if you abide by all applicable laws, rules, regulations, orders, this Agreement, and any and all other agreements between you and Incantio regarding the Services. If you breach this Agreement, or any other agreement between you and Incantio, or any applicable laws, rules, regulations or orders, your authorization to access the Site and use the Services automatically terminates.
By providing your phone number and opting in to receive SMS notifications from Incantio, you agree to the following terms and conditions:
This Agreement shall remain in full force and effect while you access the Site, use the Services, or have an Account. Incantio reserves the right (in its sole discretion, at any time, for any or no reason, with or without prior notice, and without liability) to change, modify, suspend, discontinue, or terminate the Site and/or any or all of the Services, and to restrict, suspend, or terminate your access to or use of all or any part of the Site and/or the Services. Incantio will terminate a User's access to and use of the Site and the Services if, under appropriate circumstances, the User is determined by Incantio to be a repeat copyright infringer.
(a) The Site and the Services contain text, files, photos, pictures, graphics, images, illustrations, videos, musical works, sound recordings, other audio and sounds, icons, links, software, data, comments, and other content, files, materials and works of authorship (collectively, "Content") of Incantio and third parties ("Incantio Content"). Content and Trademarks are protected by copyright, trademark, patent, trade secret, privacy, publicity and other laws. As between you and Incantio, Incantio retains ownership of all copyright and other intellectual property and proprietary rights in the Incantio Content, Incantio Trademarks, the Site and the Services and you retain ownership of all of your Content and your Trademarks.
(b) Incantio hereby grants you a limited, revocable, non-sublicensable, non-transferable license to reproduce and display the Incantio Content (excluding any software code) solely in connection with viewing the Site and using the Services as provided in this Agreement. All rights not expressly granted to you pursuant to this Agreement are expressly reserved by and to Incantio.
(c) You shall not copy, imitate or use any Incantio Trademark, domain name or any other feature of the Site or the Services, in whole or in part, without the prior written permission of Incantio.
(a) The following Content is illegal or prohibited to post on or through the Site or the Services. Prohibited Content includes content that Incantio, in its sole discretion, determines:
(b) Incantio may refuse to post, delay posting, remove, hide, stop publicly displaying, or delete any Content posted by a User that in the sole judgment of Incantio violates this Agreement or for any other or no reason, with or without prior notice, and without liability to you or to any third party.
(c) You are solely responsible for your access of the Site and use of the Services, any Content or Trademark that you post on or through the Site or the Services, and for your interactions with other Users.
(d) Incantio does not endorse and has no control over Content posted by Users. Incantio makes no warranties, express or implied, as to any Content, including as to the accuracy and reliability of any Content or the ownership thereof.
(a) The following activity is illegal or prohibited on the Site or the Services. Prohibited activity includes activity that, in the sole discretion of Incantio:
(b) Under no circumstances shall Incantio be responsible for the conduct of any Users of the Site or the Services, whether online or offline.
Incantio assumes no obligation or responsibility for monitoring the Site or the Services for inappropriate Content posted by Users or inappropriate conduct undertaken by Users. Notwithstanding the foregoing, Incantio reserves the right to investigate and take appropriate action including, without limitation, legal action, against anyone who, in Incantio's sole discretion, violates this Agreement.
You hereby represent, warrant and covenant, at all times during which you access or use the Site or the Services, that:
When we receive a proper Notification (as defined below), our policy is to promptly remove, block, or disable access to the allegedly infringing Content and we may, in our discretion, terminate the Accounts of repeat infringers in accordance with the Digital Millennium Copyright Act ("DMCA").
(a) If you are a copyright owner and believe that your work has been copied and posted on the Site or the Services in a way that constitutes copyright infringement, you or your agent may submit a notification pursuant to the DMCA by providing the following information in writing (a "Notification"):
You should direct Notifications to Incantio's DMCA Copyright Agent at: Incantio, Inc., 9030 35th Ave SW, Seattle, WA 98126, United States, Attn: Copyright Agent, or via email at copyrightagent@incantio.com.
(b) If Content you posted is removed or access to such Content is disabled, and you believe that the Content is not infringing, or that you have the authorization from the copyright owner or otherwise pursuant to the law to post and use the Content, you may send a counter-notice containing the following information to Incantio's DMCA Copyright Agent (a "Counter-Notice"):
(c) If a Counter-Notice is received by the Incantio DMCA Copyright Agent, the disputed Content will remain removed from the Site and the Services for 10 business days (unless the parties resolve such matter fully), and Incantio may send a copy of the Counter-Notice to the original complaining party. Unless the original complaining party files an action seeking a court order against the Content provider or User, the removed Content may be replaced or access to it restored in 10 business days or more after receipt of the Counter-Notice, at Incantio's sole discretion.
(d) In the event you believe that the Content posted by another User violates your intellectual property rights other than copyright rights (i.e., trademark rights), please provide the same information requested in Section 9(a) above. The information should be sent to Incantio, Inc., 9030 35th Ave SW, Seattle, WA 98126 Attn: Legal, or via email at support@incantio.com.
(a) Links to third party websites, including links to Member websites, on the Site or the Services, are provided solely for your convenience. If you use these links, you will leave the Site or the Services. We do not control and are not responsible for these third-party websites, their content or their policies. We do not endorse or make any representations about third party websites or any content, goods, or services available thereon. If you decide to access any of the third-party sites linked to the Site or the Services, you do so entirely at your own risk.
(b) Incantio takes no responsibility for third party advertisements which are posted on the Site or the Services, nor do we take any responsibility for the goods or services provided by such advertisers.
(a) YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND, TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, INCANTIO EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL AND WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. YOU AGREE THAT YOU ARE MAKING USE OF THE SITE AND/OR THE SERVICES AT YOUR OWN RISK.
(b) ALTHOUGH INCANTIO WILL IN GOOD FAITH ENDEAVOR TO REMEDY ERRORS IN THE SITE OR THE SERVICES, INCANTIO SPECIFICALLY DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ALL ERRORS IN THE SITE OR THE SERVICES WILL BE CORRECTED.
(c) INCANTIO IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL OR PLAYERS DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET, THE SITE OR THE SERVICES OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON'S COMPUTER OR OTHER HARDWARE RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SITE OR THE SERVICES.
(a) IN NO EVENT SHALL INCANTIO OR ANY OF ITS AFFILIATES, OR ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OWNERS OR REPRESENTATIVES OF ANY OF THE FOREGOING (COLLECTIVELY, "RELATED PARTIES") BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE RELATED PARTIES ARE LIABLE OR SHALL BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES RESULTING DIRECTLY OR INDIRECTLY FROM (i) YOUR USE OR INABILITY TO USE THE SITE OR THE SERVICES, (ii) GUIDANCE PROVIDED BY INCANTIO, (iii) INTERRUPTIONS TO THE SITE OR THE SERVICES, (iv) VIRUSES OR MALICIOUS SOFTWARE CONTAINED ON OR TRANSMITTED THROUGH THE SITE OR THE SERVICES, (v) BUGS OR ERRORS OF ANY KIND ON THE SITE OR IN THE SERVICES, (vi) DAMAGE TO YOUR HARDWARE BY USE OF THE SITE OR THE SERVICES, (vii) THE ACTIONS OR OMISSIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER USERS, OR (viii) A SUSPENSION OR TERMINATION OF YOUR ACCOUNT.
(c) REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF ANY RELATED PARTY IS FOUND TO BE LIABLE, THE AGGREGATE LIABILITY OF THE RELATED PARTIES SHALL BE LIMITED TO THE LESSER OF (i) ONE HUNDRED DOLLARS ($100.00), OR (ii) THE FEES ACTUALLY PAID TO AND RETAINED BY INCANTIO FOR THE SPECIFIC ACTIVITY OR SERVICE GIVING RISE TO THE LIABILITY.
You agree to indemnify and hold harmless Incantio and its Related Parties from and against any and all Claims arising out of or related to (i) your access to or use of the Site or the Services, (ii) your violation of any third party right, including without limitation any copyright, patent, trademark, property or privacy right, (iii) your breach of any of your representations, warranties or covenants contained in this Agreement, or (iv) any Content or Trademarks that you post on the Site or on or through the Services.
You are solely responsible for your interactions with other Users. Incantio reserves the right, but has no obligation, to monitor disputes between you and other Users. If you have a dispute with one or more Users, you release Incantio and the other Related Parties from Claims arising out of or related to such disputes.
Software available in connection with the Site and/or the Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Site, the Services, or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
(a) Applicable Law. You agree that this Agreement and any claim or dispute that may arise between you and any Related Party shall be construed under the laws of the State of Washington, without regard to its conflict of laws rules.
(b) Agreement to Arbitrate. You and Incantio agree that any and all claims and disputes arising between you and us pursuant to this Agreement and your use of the Site or the Services shall be resolved exclusively through final and binding arbitration. Alternatively, you may assert your claims and disputes in small claims court, if the claim or dispute so qualifies. The Federal Arbitration Act shall govern this agreement to arbitrate.
(i) Class and Representative Actions Prohibited. You and Incantio agree that each of us may bring claims and disputes against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.
(ii) Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, as available at www.adr.org. The party intending to seek arbitration shall send to the other, by certified mail, notice of the dispute to: Incantio, Inc., 9030 35th Ave SW, Seattle, WA 98126, United States, Attn: Legal.
(iii) Invalidity. With the exception of the class action prohibition, if an arbitrator or court decides that any portion of this Section 16 is invalid or unenforceable, all other portions shall continue to apply.
(iv) Opt-Out Procedure. If you are a new User, you can opt out of this agreement to arbitrate by mailing a written opt-out notice postmarked no later than 30 days after the date you accept the terms of this Agreement for the first time. The opt-out notice should be mailed to: Incantio, Inc., 9030 35th Ave SW, Seattle, WA 98126, United States, Attn: Legal.
(c) If the agreement to arbitrate does not apply to you, you agree that any claim or dispute that has arisen between you and Incantio will be resolved exclusively by a state or federal court located in Seattle, WA.
(a) Any notice required or permitted to be given to any party to this Agreement shall be in writing and shall (i) if to Incantio, be either personally delivered by hand, delivered by prepaid courier or sent by prepaid registered mail and shall be deemed received upon delivery, and (ii) if to a Member, be delivered either via email, or by being posted as a notification to the Member's Account.
(b) Any such notice shall be delivered or sent: (i) if to Incantio, to 9030 35th Ave SW, Seattle, WA 98126, United States, Attn: Legal, and (ii) if to a Member, either to the email address specified in connection with that Member's Account, or by being posted as a notification to the Member's Account.
Incantio shall not be liable for any delay or failure in performance resulting from acts or occurrences beyond the reasonable control of Incantio, including, without limitation, acts of God, acts of war, terrorism, riot, fire, flood, or other disaster or other natural occurrence, acts of government, strike, lockout, or power or Internet failure.
You may not assign or transfer any of your rights or obligations under this Agreement, or any other agreement between you and Incantio, without the prior written consent of Incantio. This Agreement shall be binding on the parties and their respective successors and permitted assigns.
You and Incantio enter into this Agreement as independent contractors, and neither Incantio nor you shall be or construed to be a partner, joint venturer, agent or employee of the other party.
This Agreement, the Privacy Policy, and any other agreements between you and Incantio, constitute the entire agreement between you and Incantio regarding your access of the Site and use of the Services, operate to the fullest extent permissible by law and supersede all prior and contemporaneous agreements, understandings, proposals, and negotiations of any kind, whether oral or written, with respect to the subject matter hereof and thereof. The failure of Incantio to exercise or enforce any right or provision shall not operate as a waiver of such right or provision. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, unlawful, void or unenforceable, such provision shall be severed from the agreement in question, and the other provisions shall remain in full force and effect.