PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THESE “TERMS OF SERVICE”) CAREFULLY.  

Welcome, and thank you for your interest in Open Music Exchange, Inc. (“OME” “we,” or “us”), our website at  https://ome.audio (“Website”), and any other services or resources that are accessed or enabled via the Website (collectively with the Website, the “Services”).  For avoidance of doubt, with respect to Creators (as defined below), the “Services” shall include the Creator Platform (as defined below).  

BY ACCESSING OR USING THE SERVICES IN ANY WAY, INCLUDING BY CLICKING ON AN “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, ACCESSING THE SERVICES AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH OME, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS OF SERVICE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

THE SERVICES INCLUDE A MARKETPLACE WHICH ALLOWS CREATORS (AS DEFINED HEREIN) TO OFFER TO SELL AND SELL DIGITAL GOODS, ASSETS, AND SERVICES TO SUPPORTERS (AS DEFINED BELOW), AND WHICH ALLOWS SUPPORTERS TO BUY, OFFER TO RESELL, AND RESELL SUCH DIGITAL GOODS, ASSETS, AND SERVICES.  ALL ITEMS AVAILABLE THROUGH THE MARKETPLACE ARE FURNISHED BY OR ON BEHALF OF SELLERS IN CONNECTION WITH SUCH SALES.  OME IS NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR.  YOU AGREE THAT WE SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES BETWEEN YOU AND ANY SELLER OF ITEMS IN RESPECT OF THE USE, MISUSE, PROVISION OR FAILURE TO PROVIDE ANY SUCH ITEMS.

THESE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT OUR LIABILITY REGARDING THE SERVICES IS LIMITED; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY; (3) YOUR CONSENT TO RELEASE US FROM LIABILITY; AND (4) YOUR AGREEMENT TO INDEMNIFY US FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES.

WITH RESPECT TO CREATORS, IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OME’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 4.2(b) (AUTOMATIC RENEWAL) BELOW.

PLEASE BE AWARE THAT SECTION 18 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY.  AMONG OTHER THINGS, SECTION 18 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  SECTION 18 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ SECTION 18 CAREFULLY.  UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.  

PLEASE BE AWARE THAT SECTION 1.4 (OME COMMUNICATIONS) OF THESE TERMS OF SERVICE, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL.  

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  These Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME.  When changes are made, we will make a new copy of these Terms of Service available on or through the Services and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website.  We will also update the “Last Updated” date at the top of these Terms of Service.  If we make any material changes, and you have registered with us to create an Account (defined below) we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement.  Any changes to these Terms of Service will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Members (defined below), provided that any material changes shall be effective for Members who have an Account with us upon the earlier of (i) thirty (30) days after posting notice of such changes on the Website; (ii) thirty (30) days after dispatch of an e-mail notice of such changes to Members; or (iii) such Members’ affirmative consent to the updated Terms of Service.  We may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS OF SERVICE.

1. SERVICES.  The Services consist of the Website and any other products and services made available by OME through or in connection with the Website.  OME is a social marketplace where (i) supporters (“Supporters”) can access premium information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (collectively, “Content”) made available by their favorite musicians (“Creator(s),” and such Content “Creator Content”), join exclusive members-only communities for those Creators (“Communities”), purchase and sell digital goods, assets, and services through Communities or the Marketplace (as defined below), and interact with Creators and other Supporters; and (ii) Creators can use the OME platform (the “Creator Platform”), as made available by OME on its Website, to mint and offer unique, non-fungible tokens (“Tokens”) for sale through the Services, create Communities, and upload and share their Creator Content.  

1. License to use the Services.  The Services, and the information and content available on the Website are protected by copyright laws.  Subject to the terms of this Agreement, OME grants you a limited license to access and reproduce portions of the Services to which you have access for the sole purpose of using such Services for your personal or internal business purposes.  Unless otherwise specified by us in a separate license, your right to use any and all Services is subject to the Agreement.  

2. Updates.  You understand that the Services are evolving.  As a result, we may require you to accept updates to any of the Services that you have installed on your computer or mobile device.  You acknowledge and agree that we may update the Services with or without notifying you.  You may need to update third-party software from time to time in order to use the Services.

3. Certain Restrictions.  The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of OME; (c) you shall not use any metatags or other “hidden text” using our name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we may choose to grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services.  Any future release, update or other addition to the Services shall be subject to the Agreement.  OME, its suppliers and service providers reserve all rights not granted in the Agreement.  Any unauthorized use of any Services terminates the licenses granted by us pursuant to the Agreement.

4. OME Communications.  By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail.  Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning us and industry developments.  IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.  

5. Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing or using the Services.  

6. Marketplace.  The Services include a marketplace (the “Marketplace”) where Creators can offer for sale and sell Tokens, and Supporters can offer to purchase, purchase, offer for resale, and resell such Tokens.  Pricing and payment terms, including the specific details with relation to the offering of any Tokens, shall be set forth at point of sale.  Creators can also make available unique Creator Content (as defined below) not otherwise available to Members (as defined below) and made available by the Creator only to those Members who then-currently own one or more of such Creator’s Tokens ( “Limited Content”),.  Certain portions of the Marketplace, including certain Limited Content (as defined below) may be accessible only through the Community (as defined below) of a particular Creator.  Tokens listed on the Marketplace are being offered by the individuals seeking to sell such Tokens (“Sellers”), and the actual contracts for sale are between the Sellers and the individuals seeking to buy such Tokens (“Buyers”).  A Member who has purchased a Token on the Marketplace, whether in its initial sale (the “Primary Sale”) or otherwise, may be able to resell that Token (each such sale, a “Secondary Sale”) on the Marketplace and/or on a Third-Party Website or Third-Party Application (as defined below), e.g., OpenSea, subject to this Agreement and any terms and conditions for resale provided on the Marketplace.  Unless explicitly set forth at point of sale, OME is not the Seller of any Token listed on the Marketplace and will not personally provide or deliver any Tokens.  While we may, in our discretion, help facilitate resolution of disputes through various programs, we have no control over the quality of Tokens or Limited Content offered on the Marketplace.  We cannot control or guarantee the truth or accuracy of a Member’s or Creator’s Content, the ability of Sellers to sell Tokens, the ability of Buyers to pay for Tokens, or that a Buyer and Seller will actually complete a transaction or deliver or return any Tokens listed on the Marketplace.  OME will not personally provide or deliver any Tokens unless OME is listed as a Seller at point of sale.  While OME may provide pricing and guidance for Tokens sold by Sellers on our Marketplace, such information is solely informational.  We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any reviews provided by Members, Tokens sold by Sellers, or of the integrity, responsibility, or any actions of any Members.  OME makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions.  When interacting with other Members you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting offline with other persons whom you don’t know.  NEITHER OME NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.  OME AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES OR YOUR USE OF OR INABILITY TO USE ANY TOKEN PURCHASED THROUGH THE SERVICES.  

7. Selling on OME.  PLEASE READ CAREFULLY THIS IMPORTANT INFORMATION ABOUT PROCEDURES FOR SELLING ON OME BEFORE USING THE MARKETPLACE.  To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires all financial institutions to obtain, verify, and record information that identifies each person who has an account which has the ability to list items for sale on OME.  When you engage in transactions on OME, we may ask you to provide additional information or copies of identifying documents that will allow us and/or our Payment Processor(s) (as defined below) to identify you.  We reserve the right to require you to provide such additional information and documents in accordance with Section 2.2 of these Terms of Service.  Failure to provide such information upon request, as well as any other violation of this Agreement, may result in your removal from the Services, including a termination of your ability to sell through the Marketplace.  

8. Transactions Effected Through a Digital Wallet.  In order to engage in a transaction involving any Token, you must have a third-party digital wallet compatible with the Services (a “Digital Wallet”).  In order to be successfully completed, any transaction involving Tokens initiated by or sent to your Digital Wallet must be confirmed by and recorded on the blockchain supporting such Tokens.  OME has no control over any blockchain and therefore cannot and does not ensure that any transaction details that you submit or receive via our Services will be validated by or confirmed on the relevant blockchain, and OME does not have the ability to facilitate any cancellation or modification requests.  You accept and acknowledge that you take full responsibility for all activities that you effect through your Digital Wallet and accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Digital Wallet, to the maximum extent permitted by law.  

2. REGISTRATION.

1. Registering Your Account.  In order to access certain features of the Services you may be required to become a Member.  For purposes of the Agreement, a “Member” is a Supporter, Creator, or other user who has linked a Digital Wallet to the Website and registered an account (“Account”).  

2. Registration Data.  In registering an Account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors.  You may not share your Account or password with anyone, and you agree to notify us immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account at any given time.  We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use the Services if you have been previously removed by us, or if you have been previously banned from any of the Services.  OME may require you to provide additional information and documents at the request of any competent authority, in order to help OME comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism, or otherwise in OME’s sole discretion.  OME may also require you to provide additional information and documents in cases where it has reasons to believe that (x) your Account is being used for money laundering or for any other illegal activity; (y) you have concealed or reported false identification information and other details; or (z) transactions effected via your Account were effected in breach of this Agreement.  In such cases, OME, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by OME and accepted as satisfying the requirements of applicable law, regulation, or policy.  If you do not provide complete and accurate information and documents in response to any such request from OME, OME may refuse to provide any Tokens, Limited Content, product, service, and/or further access to the Services to you.

3. Member Representations and Warranties.  When you register for an Account, you hereby represent and warrant, to and for the benefit of OME and its affiliates, as follows:

1. Independent Investigation and Non-Reliance.  You are sophisticated, experienced and knowledgeable in the minting, listing, buying or selling (as applicable) of any Tokens (as defined below) using blockchain technology.  Additionally, you have conducted an independent investigation of the Services and the matters contemplated by this Agreement, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing and, in making the determination to mint, list, buy, or sell (as applicable) any Tokens using the Services, you have relied solely on the results of such investigation and such independent judgment.  Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Tokens, are evolving, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Tokens) may constitute securities under applicable legal requirements.  You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, OME, in determining to (i) enter into this Agreement, (ii) mint, list, buy, or sell (as applicable) any Tokens; or (iii) use the Services.  

2. Litigation.  There is no legal proceeding pending that relates to your activities relating to the minting of Tokens or other token- or digital asset-trading or blockchain technology related activities.

3. Compliance.  You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, token-trading activities or minting Tokens.  No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to buying, minting or selling Tokens.

4. Your Account.  Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of OME.  

3. SUPPORTER TERMS. The provisions in this Section 3 shall apply solely with respect to Supporters.  

1. Using the Services.

1. Purchasing a Token.  When you purchase a Token, you agree to comply with any terms, including licenses or payment rights, that are embedded within or otherwise included with such Token, and to make commercially reasonable efforts to bind subsequent owners of such Tokens to any such terms.  Unless otherwise expressly set forth at point of sale for such Token, ownership of a Token does not convey any right, title, or interest in or to the Content embodied by or linked to such Token (such Content, “Token IP”).  Unless otherwise expressly set forth at point of sale for such Token, when you purchase a Token you shall receive in connection with such Token a limited, non-exclusive, non-sublicensable, non-transferable license to view and display the Token IP for your personal, non-commercial use and to perform, display, and reproduce the Token IP solely in accordance with the functionality of the Services for so long as you own such Token.  

2. Accessing Limited Content.  Tokens may be used to “unlock” various goods, rights, and other privileges on or through the Services, including without limitation Limited Content.  The Creator offering any Token shall set forth at point of sale the terms applicable to each Token, as well as any goods, services, rights, or Limited Content to which the purchaser or then-current owner of such Token is entitled and any limitations applicable thereto.  Subject to OME’s cryptographic recognition of the appropriate Token in your Digital Wallet, you may be able to “unlock” certain of a Creator’s Limited Content.  In accordance with the foregoing, OME grants you a non-exclusive, non-sublicensable, non-transferable license to stream any Song(s) made available by such Creator as part of its Limited Content, and to access any other Limited Content made available by such Creator, in each case to the extent permitted by and in accordance with the functionality of the Services.  

3. Accessing Communities.  Creators can use the Services to develop Communities and offer Supporters access to such Communities.  Each Community has unique access requirements, and some parts of a Creator’s Community may be open to all users.  Supporters may be able to use certain Tokens to gain access to a Community.  Once you join a Community, you may have access to certain Creator Content, including Limited Content.  A Creator may also enable you to access and use Third-Party Websites and/or Third-Party Applications (as defined below) through such Creator’s Community.  The Creator determines the terms applicable to such Creator’s Community in their sole discretion.    

2. Fees.  

1. Services Fees.  Registering for the Services is free; however, we charge certain fees for various transactions through your use of the Services (“Fees”) as set forth at point of sale.  All Fees are payable in U.S. Dollars unless otherwise stated.  

2. Secondary Sale Fees.  For Secondary Sales of a Token, whether such Secondary Sale takes place on the Services or otherwise, the Seller of such Token shall pay to OME two percent (2%) of the total consideration paid for such Token in such Secondary Sale, or such royalty amount as is otherwise recorded in such Token (“Secondary Sale Fee”).  Additionally, there may be an additional fee payable to the Creator of such Token in connection with a Secondary Sale of such Token, in each case as is recorded in the Token.

3. Processing Fees.  All sales of Tokens on the Services are subject to the following fees (“Processing Fees”):  any credit card charge-back, credit card processing, or other fees then-currently assessed by OME in connection with the Token (as indicated on or through the Service), including any Gas fees incurred by OME in connection with minting such Token.  “Gas” fees are set by OME, based on the market conditions on the applicable blockchain platform at the time you mint a Token or otherwise effect a transaction involving a Token.  Processing Fees will be as set forth at point of sale and are payable by the Buyer in any such purchase.  

4. CREATOR TERMS.  The provisions in this Section 4 shall apply solely with respect to Creators.

1. License; Services.  

1. Your License from OME.  Subject to your compliance with the terms of the Agreement, OME grants you a limited, non-exclusive, non-sublicensable and nontransferable right to access and use the Creator Platform.

2. Tokens.  The Creator Platform enables you to mint and offer for sale Tokens and any digital products, services and/or benefits to be furnished in connection with such Tokens, including without limitation any Limited Content made available by you on or through the Creator Platform.  The Tokens may embody, be associated with, and/or otherwise utilize Creator Content (including Limited Content) works of authorship, trademarks, publicity rights and/or other intellectual property owned or controlled by you (“Creator IP”) all of which shall be furnished by you at your sole expense.  You shall specify via the Creator Platform any information requested by us with respect to Tokens offered by you in a Primary Sale hereunder.

3. OME’s License from You. You grant to OME the non-exclusive, worldwide, royalty-free, sublicensable right and license to use the trademarks, service marks, publicity rights, privacy rights, names, images, likenesses, biographical details, indicia of identity, and logos specified by you (“Creator Marks”), as well as your Creator IP and Creator Content (including any Songs, as defined below), in connection with (i) your use of the Creator Platform and the minting, and offering of Tokens hereunder; (ii) other tools and services enabled by or through your Community; (iii) any advertising and/or promotional activities for the Tokens and/or Services that OME, in its sole discretion, elects to undertake; and (iv) OME’s advertisement and promotion of itself and its products and services, as well as in connection with exercising OME’s rights hereunder.  All uses of Creator Marks will inure to your benefit.  The foregoing license includes, without limitation and for the avoidance of doubt, the right with respect to any Song(s) to which Creator provides access to Supporters in connection with redemption of a Token, for OME to stream, broadcast, publicly perform, synchronize, and mechanically reproduce the Song(s).  

4. Third-Party Beneficiaries.  You acknowledge and agree that each owner of any Token to be minted and/or offered hereunder shall be an intended third-party beneficiary of this Agreement for the purposes of enforcing such owner’s rights with respect to Creator IP and/or Limited Content associated with such Token.  You further agree that OME shall not be a party to or have any responsibility or liability for, arising out of, relating to, associated with or resulting from any disputes between you and any owner of a Token with respect to the use, misuse, provision or failure to provide any Creator IP.

2. Fees; Subscription.  

1. Platform Subscription Fees.  You will be responsible for payment of the applicable fee for access to the Creator Platform (the “Platform Subscription Fee”) at the time you create your Account and select your subscription package (the “Subscription Commencement Date”).  Except as set forth in the Agreement, all Platform Subscription Fees are non-cancelable and non-refundable.  No contract will exist between you and OME for the platform subscription until OME accepts your order by a confirmatory e-mail, in-app confirmation, or other appropriate means of communication.

2. Automatic Renewal.  Your subscription to the Creator Platform will continue indefinitely until terminated in accordance with the Agreement.  After your initial subscription period (the “Initial Term”), and again after any subsequent subscription period (each, a “Renewal Term” and, with the Initial Term, the “Term(s)”), your subscription will automatically commence on the first day following the end of such Term (each, a “Renewal Commencement Date”) and continue for an additional Term of the same duration, at OME’s then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from OME that your subscription will be automatically renewed, you will have thirty (30) days from the date of such notice), by logging into your Account.  If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact OME at contact@ome.audio, or log into your Account to cancel.  If you cancel your subscription, you may use your subscription until the end of the then-current Term; your subscription will not be renewed after your then-current Term expires.  However, you will not be eligible for a prorated refund of any portion of the Platform Subscription Fee paid for the then-current Term.  By subscribing, you authorize OME to charge your Payment Provider (as defined below) now, and again at the beginning of any subsequent subscription period.  Upon renewal of your subscription, if OME does not receive payment from your Payment Provider, (a) you agree to pay all amounts due upon demand and/or (b) you agree that OME may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription Term will begin as of the day payment was received).  

3. Token Sales.  OME will retain a platform service fee equivalent to five percent (5%) of the total consideration paid for a Token in any Primary Sale or Secondary Sale of that Token, whether such sale takes place on or off the Services.  

4. Processing Fees.  All minting, Primary Sales and Secondary Sales of Tokens are subject to Processing Fees, in each case as set forth on the Services.

5. Appointment of OME as Limited Payments Agent.  By using the Creator Platform to mint a Token, you hereby appoint OME as your limited payments agent for the sole purpose of receiving, holding and settling payments due and owed to you arising out of (i) the minting of Tokens through the Service; and (ii) any Secondary Sales of Tokens.  OME will process such payments and settle payments that are actually received by OME, less any amounts owed to OME, including taxes, fees and other obligations, and subject to the terms of this Agreement.  You agree that a payment received by OME, on your behalf, satisfies the payor’s obligation to make payment to you, regardless of whether OME actually settles such payment to you.  If OME does not settle any such payments as described in this Agreement to you, you will have recourse only against OME and not the payor, as payment is deemed made by the payor to you upon constructive or actual receipt of such payment by OME.

3. End User Support.  You acknowledge and agree that you, and not OME, are solely responsible for providing support to end users in connection with your use of the Creator Platform for the minting and sale of any Tokens and the provision of any Limited Content.  Subject to the terms of OME’s appliable privacy policy and procedures, OME may make available to you any information provided to OME by end users in connection with any Tokens that you mint hereunder, including such end users’ email addresses, OME usernames, and social media username(s), each solely to the extent such information is made available to OME.  OME has no independent obligation to collect such information from end users.  While OME may in its sole discretion elect to provide technical support to end users in connection with the sale of any Tokens, OME has no obligation to you to provide any such support.

4. Buyer Disputes.  You acknowledge and agree that OME is not a party to any agreement between you and the buyer of any Tokens that you mint using the Creator Platform or any other Goods offered by you.  In the event of a dispute between you and any third party related to your Tokens or other Goods, including without limitation any dispute between you and a payment services provider, OME will not be a party to any such dispute.  YOU ARE SOLELY RESPONSIBLE FOR DISPUTE RESOLUTION IN CONNECTION WITH YOUR USE OF THE CREATOR PLATFORM TO MINT AND SELL TOKENS OR TO SELL OTHER GOODS.  OME DOES NOT PROVIDE REFUNDS TO ANY PARTY IN CONNECTION WITH THE MINTING, PURCHASE, OR SALE OF TOKENS OR THE PURCHASE OR SALE OF GOODS.  You are solely responsible for communicating these policies to end users in connection with the minting and sale of your Tokens and the sale of other Goods, and you shall have no recourse against OME in connection with any claims that arise from disputes between you and any third party.

5. Promotion.  You are solely responsible for ensuring that your use of the Creator Platform and all marketing and promotional activity that you undertake in respect thereof complies with all applicable laws, rules, and regulations.

6. Exclusivity.  You acknowledge and agrees that, as a condition to OME entering into this Agreement, you shall not, nor shall you cause or permit any third party to, directly or indirectly, mint any NFT that is identical, reasonably similar to, competitive with, or that embodies Creator IP identical or similar to, or competitive with, the Tokens minted hereunder.

7. Disclaimers.  THE CREATOR PLATFORM IS OFFERED “AS IS” AND “WITH ALL FAULTS.” OME MAKES NO WARRANTIES REGARDING YOUR ENJOYMENT OF THE CREATOR PLATFORM.  YOU ACKNOWLEDGE THAT THE CREATOR PLATFORM IS EXPERIMENTAL, HAS NOT BEEN GENERALLY RELEASED, AND MAY CONTAIN DEFECTS AND DEFICIENCIES THAT OME CANNOT OR WILL NOT CORRECT, AND THAT OME SHALL HAVE NO OBLIGATION TO CONTINUE OFFERING THE CREATOR PLATFORM OR TO RELEASE ANY PART OF THE SERVICES AS A FINAL PRODUCT.

8. Creator’s Representations and Warranties.  Creator represents and warrants that Creator is the sole and exclusive owner of all right, title and interest in and to all Creator Content and any Creator IP incorporated into or otherwise used, held for use or practiced in connection with (or planned by Creator to be incorporated into or otherwise used, held for use or practiced in connection with) the Creator Content and the minting of Tokens.  Without limiting the foregoing, Creator represents and warrants that Creator is the owner of 100% of the Songs, including the musical compositions and sound recordings embodied therein and any masters, or otherwise controls all of the necessary rights in order to grant the licenses to the Songs granted hereunder, including any broadcast and streaming rights.  Creator represents and warrants that Creator has the right to grant all licenses granted hereunder, and that OME’s use of the Creator Content, Creator IP, and Creator Marks as contemplated hereunder will not infringe or violate any rights, including intellectual property rights, of any third party.  “Song(s)” means one or more individual songs, each of which is written and performed by Creator (including each song’s musical compositions, sound recording, performances, and/or other materials) and in and to each of which Creator owns all right, title and interest.

9. Indemnification by Creator.  CREATOR SHALL INDEMNIFY AND HOLD HARMLESS OME, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES (THE “OME INDEMNITEES”) FROM AND AGAINST, AND SHALL COMPENSATE AND REIMBURSE EACH OF THE OME INDEMNITEES FOR, ANY EXPENSES INCURRED AND/OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY SUFFERED AT ANY TIME BY ANY OF THE OME INDEMNITEES OR TO WHICH ANY OF THE OME INDEMNITEES MAY OTHERWISE DIRECTLY OR INDIRECTLY BECOME SUBJECT AT ANY TIME AND WHICH ARISE DIRECTLY OR INDIRECTLY FROM OR AS A RESULT OF, OR ARE DIRECTLY OR INDIRECTLY CONNECTED WITH: (A) ANY ACT OR OMISSION ATTRIBUTABLE TO THE FURNISHING OF (OR THE FAILURE TO FURNISH) ANY CREATOR IP OR LIMITED CONTENT, OR INVOLVING ANY THIRD PARTY IN CONNECTION WITH THE MINTING, LISTING, BUYING, SELLING OR TRADING OF ANY TOKENS HEREUNDER, INCLUDING WITHOUT LIMITATION ANY END USER DISPUTES; (B) ANY BREACH OR INACCURACY OF ANY OF THE REPRESENTATIONS AND WARRANTIES MADE BY CREATOR; (C) ANY BREACH OR NON-PERFORMANCE OF ANY COVENANT OR AGREEMENT MADE BY CREATOR; (D) ANY CREATOR IP, INCLUDING CLAIMS THAT ANY SUCH CREATOR IP INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (E) CREATOR’S USE OR MISUSE OF ANY PERSONAL INFORMATION; (F) CREATOR’S USE OR MISUSE OF THE OME PLATFORM; OR (G) ANY CLAIMS ARISING FROM OR RELATED TO THE USE OF ANY SONG(S).

10. Cancellation of Subscription.  You will have thirty (30) days from the Subscription Commencement Date, or any Renewal Commencement Date, to cancel your subscription to the Creator Platform, in which case OME will refund your Platform Subscription Fee, if already paid pursuant to Section 4.2(a) (Platform Subscription Fees).  Except as set forth above, the Platform Subscription Fee shall be non-refundable.

11. Survival.  Notwithstanding anything to the contrary herein, any obligations of Creator incurred prior to termination, including without limitation any obligations to end users of the Creator Platform incurred in connection with the offering and/or sale of Tokens hereunder, shall survive the expiration or earlier termination of this Agreement.  In the event of Creator’s material failure to perform Creator’s obligations as set forth in the foregoing sentence, whether before or after termination of this Agreement, no further payments shall be made to Creator by OME.  

5. PURCHASE TERMS; PAYMENT.

1. Payments to OME.  You agree to pay any fees or charges incurred by your Account in accordance with the fees, charges and billing terms then-currently in effect.  You may be required to provide us or our Payment Processor(s) (as defined below) with a valid credit card, Digital Wallet address, bank account information, or other payment provider account (“Payment Provider”) as a condition to accessing certain Services.  Your Payment Provider agreement governs your use of the designated credit card or other account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities related thereto.  By providing us with your credit card number or Payment Provider account and associated payment information, you agree that OME is authorized to immediately invoice your Account for all fees and charges due and payable to us hereunder and that no additional notice or consent is required.  You agree to immediately notify us of any change in your billing address or the credit card or Payment Provider account used for payment hereunder.  We reserve the right at any time to change our fees, prices, and/or billing methods, either immediately upon posting on the Services or by e-mail delivery to you.

2. Payment of Proceeds.  Any amounts payable to you in connection with a Primary Sale or Secondary Sale of any Token (“Proceeds”) will be due and payable to you promptly following OME’s receipt of consideration in connection with each such sale.  OME shall pay any Proceeds to you in-kind via our Payment Processor.  Any payments made in fiat currency will be paid out in the same fiat currency.  Any payments made with cryptocurrency will be paid out using the same cryptocurrency.  For the avoidance of doubt, OME will not be responsible for exchanging any cryptocurrency to fiat, or vice versa, for you.  OME shall have no liability arising out of or relating to the Digital Wallet address, Stripe information, or other banking or payment account information provided by you (e.g., any errors, circumstances, acts or omissions resulting in loss of funds).  

3. Taxes.  Any payments required hereunder may not include any Sales Tax that may be due in connection with the Services provided.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.  If OME determines it has a legal obligation to collect a Sales Tax from you, OME shall collect such Sales Tax in addition to the other payments required.  If any Services or products, or payments for any Services or products, are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to OME, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify OME for any liability or expense OME may incur in connection with such Sales Taxes.  Upon OME’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  The parties hereto recognize and agree that they anticipate that any sales, value-added tax (“VAT”) and other indirect taxes applicable to the sales contemplated under this Agreement shall be charged to the ultimate buyer in any sale.  Notwithstanding the foregoing, if the applicable sales, VAT or indirect tax is imposed under law on OME or OME is treated as a withholding agent in connection with any such taxes, and OME is unable to collect such taxes from the ultimate buyer after commercially reasonable efforts, the parties agree that Seller shall bear and be responsible for such taxes.  OME shall have no obligation to indemnify and make whole Seller for any tax liability or penalty arising from any information reporting associated with the sale, license, or other distribution of any Tokens or other Goods through the Services.  You are solely responsible for determining what, if any, taxes apply to transactions involving Tokens, or any other use of the Services that you undertake.  Neither OME nor any OME Party (as defined below) is responsible for determining the taxes that may apply to such transactions.  You are solely responsible for paying any such taxes and OME shall have no liability to you or any third party with respect thereto.  OME shall issue a Form 1099 and/or any other documentation reasonably required in connection with taxes that may be applicable to your use of the OME Services.  

4. Withholding Taxes.  You agree to make all payments of fees to us free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of fees to OME will be your sole responsibility, and you will provide OME with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

5. Free Trials and Other Promotions.  Any free trial or other promotion must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fees.  

6. Third Party Payment Processing.  OME uses Stripe, Inc. and its affiliates as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Payment Processor”).  By buying or selling on any of the Services, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Payment Processor Agreement”) and hereby consent and authorize OME and Stripe to share any information and payment instructions you provide with one or more Payment Processor(s) to the minimum extent required to complete your transactions.  Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Services, or you may have your Account suspended or terminated.  We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.  

6. RESPONSIBILITY FOR CONTENT.

1. Types of Content.  You acknowledge that all Content shall be the sole responsibility of the party from whom such Content originated.  This means that you, and not OME, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Members of the Services, and not OME, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).  User Content includes, without limitation, Creator Content.

2. No Obligation to Pre-Screen Content. You acknowledge that we have no obligation to pre-screen Content (including, but not limited to, User Content), although we reserve the right in our sole discretion to monitor, pre-screen, refuse or remove any Content.  By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that OME pre-screens, refuses or removes any Content, you acknowledge that OME will do so for OME’s benefit, not yours.  Without limiting the foregoing, we shall have the right to remove any Content that violates the Agreement or that we otherwise determine in our sole discretion is objectionable.

3. Storage.  Unless expressly agreed to by us in writing elsewhere, we have no obligation to store any of Your Content that you Make Available on the Services.  OME has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for applying the appropriate level of access to Your Content.  If you do not choose, the system may default to its most permissive setting.  You agree that we retain the right to create reasonable limits on our use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by us in our sole discretion.  

7. OWNERSHIP.

1. Services.  Except with respect to Your Content and User Content, you agree that OME and our licensors own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and OME software).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services.  

2. Trademarks.  OME and all related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of OME and may not be used without permission in connection with your, or any third-party, products or services.  Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

3. Your Content.  OME does not claim ownership of Your Content.  However, when you as a post or publish Your Content on, in, or through the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.  

4. License to Your Content.  Subject to any applicable account settings that you select, you grant OME a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Members and to improve the Services and develop new products and services.  Unless otherwise set forth in a written agreement between you and OME, OME does not receive any right or title to any of Your Content that you submit, post, or otherwise share through the Services.  Please remember that other Members may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not OME, are responsible for all of Your Content that you Make Available on or in the Services.  Any Content posted by you on or through the Services may not contain nudity, violence, sexually explicit, or offensive subject or otherwise as determined by OME in its sole discretion.  You may not Make Available a photograph of another person without that person’s permission.

5. Username.  Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit us to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

6. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to OME through our suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to OME a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or OME’s business.

8. USER CONDUCT.  As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law.  

1. Restrictions.  You shall not (and shall not permit any third party to) (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane or otherwise in violation of OME’s then-current acceptable use policies; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without our prior written consent; (v) impersonates any person or entity, including any employee or representative of OME; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (vii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services; (viii)  engages in or knowingly facilitates any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including: (w) trading a Token at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Token, unduly or improperly influencing the market price for such Token trading on the Services or establishing a price which does not reflect the true state of the market in such Token; (x) executing or causing the execution of any transaction in a Token which involves no material change in the beneficial ownership thereof; (y) entering any order for the purchase or sale of a Token with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Token, has been or will be entered by or for the same or different parties; or (z) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of an a Token; (ix) uses the Services to carry out any financial activities subject to registration or licensing, including but not limited to using the Services to transact in securities, commodities futures, trading of commodities on a leveraged, margined, or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings, or other similar transactions; or  (x) uses the Services to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that (i) are redeemable for financial instruments; (ii) give owners any rights to participate in an ICO or any securities offering, or (iii) entitle owners to financial rewards, including but not limited to DeFi yield bonuses, staking bonuses, and burn discounts.  

2. User Content.  You may only use any User Content, whether as embedded in or otherwise comprising a Token or otherwise available on the Services, in accordance with the terms of this Agreement and with the terms of any additional right or license granted expressly by the creator of such User Content and, in the case of Tokens and Limited Content, as set forth at point of sale and solely if as applicable to you as a Buyer.  In all cases, except as expressly permitted by this Agreement: (i) you may not sell, resell, or encumber your rights in any User Content; (ii) you may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any User Content; (iii) you may not edit, change, modify, or create any derivative work of any User Content or assist or encourage any third party to do so; and (iv) you agree that we may terminate all or part of your licenses to User Content at any time for any reason, including for any breach of this Agreement.  In the event that we terminate your license to any User Content, you must promptly remove all copies of such User Content in your possession or control, including on any social media platform, and take any other action we reasonably request to assist in locating and removing the User Content, including identifying each recipient of such User Content.

3. Marketplace Restrictions.  The value of the Services rests in its thriving marketplace for Buyers and Sellers.  You acknowledge and agree that it is a material breach of this Agreement to arrange for the sale of listed Tokens or Limited Content from, or the payment of fees to, Sellers outside the context of the Marketplace for the purposes of circumventing the obligation to pay OME’s Fees for Tokens purchased through the Marketplace.  

9. INTERACTIONS WITH OTHER USERS.

1. User Responsibility.  You are solely responsible for your interactions with other Members and any other parties with whom you interact; provided, however, that we reserve the right, but have no obligation, to intercede in such disputes.  You agree that OME will not be responsible for any liability incurred as the result of such interactions.

2. Content Provided by Other Users.  The Services may contain User Content provided by other Members.  OME is not responsible for and does not control User Content.  OME has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content.  You use all User Content and interact with other Members at your own risk.

3. Release.  OME expressly disclaims any liability that may arise between users of its Services.  The Marketplace is only a venue for connecting Buyers with Sellers.  Because OME is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more users, you release OME, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any users (each a “OME Party” and collectively the “OME Parties”) 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.

10. ASSUMPTION OF RISK RELATED TO BLOCKCHAIN TECHNOLOGY.  You acknowledge and agree that:

1. The prices of digital assets are extremely volatile.  Fluctuations in the price of other digital assets could materially and adversely affect the Tokens, which may also be subject to significant price volatility.  We cannot and do not guarantee that any purchasers of Tokens will not lose money.

2. You are solely responsible for determining what, if any, taxes apply to transactions involving your Tokens.  Neither OME nor any other OME entity is responsible for determining the taxes that may apply to transactions involving Tokens.

3. Tokens exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Tokens.  Any transfer of Tokens occurs within the supporting blockchain.  OME makes no representations or warranties about the quality or availability of any supporting blockchain.  

4. There are risks associated with using Tokens and cryptocurrency, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Digital Wallet.

5. The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Services and the utility of Tokens.

6. There are risks associated with purchasing user-generated User Content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable.  OME has no responsibility for any counterfeit assets that mimic OME assets.  

7. OME reserves the right to hide Tokens, Limited Content, and other assets that OME suspects or believes may violate this Agreement.  Tokens you purchase may become inaccessible on the Services.  Under no circumstances shall the inability to view any assets on the Services serve as grounds for a claim against OME.

8. OME has no responsibility for the Tokens listed, sold, bought or traded on the Services.  OME does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any Good created or traded on the Services.  For the avoidance of doubt, OME shall have no responsibility for any failure of any Member or Creator to comply with any terms regarding the authenticity, originality, uniqueness, scarcity or other description or characteristics of the Token or Limited Content furnished by or on behalf of that Member or Creator and available via the Services.

11. INDEMNIFICATION.  You agree to indemnify and hold harmless OME and the OME Parties from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Members; (e) your purchase or attempt to purchase Goods on or through the Services; (f) your sale or attempt to sell Goods on or through the Services; or (g) your violation of any applicable laws, rules or regulations.  OME reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with OME in asserting any available defenses.  This provision does not require you to indemnify any of the OME Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.

12. DISCLAIMER OF WARRANTIES AND CONDITIONS.

1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE OME PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.  WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICES.  WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM YOUR USE OF THE SERVICES INCLUDING WITHOUT LIMITATION: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR TOKENS.

1. OME PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  OME MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.

4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OME OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

5. FROM TIME TO TIME, OME MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT OME’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

6. WE DO NOT GUARANTEE THAT ANY TOKEN OR LIMITED CONTENT WILL BE AVAILABLE AT ALL TIMES, IN ALL LOCATIONS, OR AT ANY GIVEN TIME, OR THAT WE WILL CONTINUE TO OFFER A PARTICULAR SERVICE, TOKEN, OR LIMITED CONTENT FOR ANY PARTICULAR LENGTH OF TIME.  WE DO NOT GUARANTEE THAT TOKENS OR LIMITED CONTENT WILL BE INTEROPERABLE WITH OR ACCESSIBLE THROUGH ANY THIRD-PARTY SERVICE PROVIDERS.  

7. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHAT, IF ANY, TAXES APPLY TO YOUR TRANSACTIONS ON OR THROUGH THE SERVICES.  THE OME PARTIES ARE NOT RESPONSIBLE FOR DETERMINING ANY TAXES THAT MAY APPLY TO SUCH TRANSACTIONS.  

8. THERE ARE RISKS ASSOCIATED WITH USING DIGITAL ASSETS, INCLUDING BUT NOT LIMITED TO, THE RISK OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO YOUR INFORMATION.

9. THE LEGAL AND REGULATORY REGIME GOVERNING DIGITAL ASSETS, AND NEW REGULATIONS OR POLICIES MAY MATERIALLY ADVERSELY AFFECT THE DEVELOPMENT OF THE SERVICES AND THE UTILITY AND AVAILABILITY of ANY TOKENS AND/OR LIMITED CONTENT.  

10. TOKENS ARE INTANGIBLE DIGITAL ASSETS.  THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE SUPPORTING BLOCKCHAIN.  ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY TOKEN OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE APPLICABLE BLOCKCHAIN PLATFORM.  WE DO NOT GUARANTEE THAT OME OR ANY OME PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY ITEMS.  WE CANNOT AND DO NOT GUARANTEE THAT ANY TOKEN WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY TOKEN PURCHASED THROUGH THE SERVICES.

2. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT OME PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OME PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.  

1. OME makes no warranty that the Tokens or Limited Content provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis.  OME makes no warranty regarding the quality of any such Tokens or Limited Content, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content obtained through the Services.

2. We are not involved in the actual transaction between Buyers and Sellers.  While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of Items advertised, the truth or accuracy of User Content or listings, the ability of Sellers to sell Tokens, the ability of Buyers to pay for Tokens, or that Buyer or Seller will actually complete a transaction.

3. We do not transfer legal ownership of Tokens from the Seller to the Buyer.  California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise.  Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control.  Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.

3. No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES.  YOU UNDERSTAND THAT OME DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.  OME MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  OME MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.

4. Third-Party Materials.  As a part of the Services, you may have access to materials that are hosted by another party.  You agree that it is impossible for OME to monitor such materials and that you access these materials at your own risk.

13. LIMITATION OF LIABILITY.

1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL OME PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT OME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (e) YOUR USE OF TOKENS; OR (f) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A OME PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN OME PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY AN OME PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.  

2. Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, OME PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO OME BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN OME PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A OME PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY A OME PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

3. User Content.  EXCEPT FOR OME’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN OME’S PRIVACY POLICY, OME ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT, USER CONTENT, TOKENS OR LIMITED CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

4. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

5. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.

14. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.  It is OME’s policy to terminate membership privileges of any Member who repeatedly infringes copyright upon prompt notification to OME by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written 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; and (f) 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.  Contact information for our Copyright Agent for notice of claims of copyright infringement is as follows: contact@ome.audio.

15. MONITORING AND ENFORCEMENT.  OME reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for OME; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.  If we become aware of any possible violations by you of the Agreement, we reserve the right to investigate such violations.  If we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  OME is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in our possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of OME, its Members or the public, and all enforcement or other government officials, as OME in its sole discretion believes to be necessary or appropriate.

16. TERM AND TERMINATION.  

1. Term.  The Agreement commences on the date when you accept these Terms of Service (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first accessed or used the Services; or (b) the date you accepted these Terms of Service, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.

3. Termination of Services by You.  If you want to terminate the Services provided by OME, you may do so by (a) notifying us at any time; and (b) closing your Account for all of the Services that you use, provided, however, that notwithstanding any such termination and for the avoidance of doubt, the terms of this Agreement shall continue to apply with respect to any Token or other digital asset obtained hereunder.  Your notice should be sent, in writing, to our address set forth below.  

4. Termination of Services by OME.  OME may terminate this Agreement at any time and for any reason or no reason, with or without notice to you.

5. Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately.  You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases, including without limitation any access to Limited Content.  OME will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive the expiration or earlier termination of this Agreement or any Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

6. No Subsequent Registration.  If your registration(s) with, or ability to access, the Services or any other OME community, is discontinued by us due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any OME community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.  In the event that you violate the immediately preceding sentence, OME reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

17. INTERNATIONAL USERS.  The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that OME intends to announce such Services or Content in your country.  The Services are controlled and offered by OME from its facilities in the United States of America.  OME makes no representations that the Services are appropriate or available for use in other locations.  Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

18. ARBITRATION AGREEMENT.  Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with OME and limits the manner in which you can seek relief from us.

1. Applicability of Arbitration Agreement.  Subject to the terms of this Arbitration Agreement, you and OME agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the Website, any communications you receive, any products sold or distributed through the Website, the Services, or the Terms of Service and prior versions of the Terms of Service, including claims and disputes that arose between us before the effective date of these Terms of Service (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and OME may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or OME may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms of Service as well as claims that may arise after the termination of these Terms of Service.  

2. Informal Dispute Resolution.  There might be instances when a Dispute arises between you and OME.  If that occurs, OME is committed to working with you to reach a reasonable resolution.  You and OME agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome.  You and OME therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”).  If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties.  Notice to OME that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to contact@ome.audio or regular mail to our offices located at the address set forth in Section 19.11, if applicable.  The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.  In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute.  Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration.  The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.  

3. Waiver of Jury Trial.  YOU AND OME HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and OME are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above.  There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.   

4. Waiver of Class and Other Non-Individualized Relief.  YOU AND OME AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 18.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.  ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim.  Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 18.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and OME agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California.  All other Disputes shall be arbitrated or litigated in small claims court.  This subsection does not prevent you or OME from participating in a class-wide settlement of claims.  

5. Rules and Forum.  The Terms of Service evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.  If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and OME agree that either party shall have the right to finally resolve the Dispute through binding arbitration.  The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement.  The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.  A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).  The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.  If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address.  Such counsel must also sign the Request.  By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  Unless you and OME otherwise agree, or the Batch Arbitration process discussed in subsection 18.9 is triggered, the arbitration will be conducted in the county where you reside.  Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.  If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.  Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.  You and OME agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

6. Arbitrator.  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators.  If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 18.9 is triggered, the AAA will appoint the arbitrator for each batch.

7. Authority of Arbitrator.  The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The award of the arbitrator is final and binding upon you and us.  Judgment on the arbitration award may be entered in any court having jurisdiction.

8. Attorneys’ Fees and Costs.  The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).  If you or OME need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration.  The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

9. Batch Arbitration.  To increase the efficiency of administration and resolution of arbitrations, you and OME agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against OME by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).  All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.  To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”).  In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.  The Administrative Arbitrator’s fees shall be paid by OME.  You and OME agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.  This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the email address set forth in Section 19.11, within thirty (30) days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, the email address you used to set up your OME account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

11. Invalidity, Expiration.  Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.  You further agree that any Dispute that you have with OME as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred.  Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

12. Modification.  Notwithstanding any provision in these Terms of Service to the contrary, we agree that if OME makes any future material change to this Arbitration Agreement, it will notify you.  Unless you reject the change within thirty (30) days of such change become effective by writing to OME at the email address set forth in Section 19.11, your continued use of the Website and/or Services, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.  Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms of Service and did not validly opt out of arbitration.  If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Website, any communications you receive, any products sold or distributed through the Website, the Services, or these Terms of Service, the provisions of this Arbitration Agreement as of the date you first accepted the Terms of Service (or accepted any subsequent changes to these Terms of Service) remain in full force and effect.  OME will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms of Service.

19. GENERAL PROVISIONS.

Electronic Communications.  The communications between you and OME may take place via electronic means, whether you visit the Services or send OME e-mails, or whether OME posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

1. Relationship of the Parties.  You are an independent contractor and not a partner, joint venturer, agent or employee of OME, and you will not bind or attempt to bind OME to any contract.  You are not eligible to participate in any of OME’s employee benefit plans, fringe benefit programs, group insurance arrangements, or similar programs.  Neither this Agreement nor your use of the Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between you and OME.  For the avoidance of doubt, you shall be solely responsible for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits, and OME shall have no obligation or liability to you in connection with the same.  

2. Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”).  When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of OME.  OME is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads.  OME provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith.  You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk.  When you leave our Website, this Agreement and our policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.  

3. Release.  You hereby release OME Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Members or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a OME Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.

4. Assignment.  The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you, whether by operation of law or otherwise, without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

5. Force Majeure.  OME shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemics, epidemics (including COVID-19), accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, whether or not foreseeable.  

6. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: contact@ome.audio.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

7. Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and we agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.

8. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.  

9. Choice of Language.  It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.  

10. Notice.  Where OME requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address.  In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to us at contact@ome.audio, SUBJ: LEGAL NOTICE.  Such notice shall be deemed given twenty-four hours following confirmed transmission of the same.

11. Waiver; Modification.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party hereto.  No other act, document, usage or custom shall be deemed to amend or modify this Agreement.

12. Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

13. Export Control.  You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws.  In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.  You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

14. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

15. Entire Agreement.  The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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