1. Terms of Use Introduction

Updated: 08/21/2020

Welcome to www.cindertrack.com, a service provided by CINDERTRACK LLC.

These Terms of Use (referred as “Terms”) govern your use of cindertrack.com and m.cindertrack.com (together, the "Website”, “Site”), our mobile and desktop apps (our "Apps") and all related players, widgets, tools, features, applications, data, software, APIs (which may also be subject to separate API Terms of Use) and other services provided by CinderTrack (the "Services”).

These Terms of Use, together with our, Community Guidelines, and any other terms specifically referred to in any of those documents, all of which are incorporated by reference into these Terms of Use, constitute a legally binding contract (the "Agreement"), between You and CinderTrack in relation to Your use of the Website, Apps and Services (together, the "Platform"). Please also be sure to review our Privacy Policy and Cookies Policy for more information on how we collect and use data relating to the use and performance of the Platform, as well as our responsibilities and your rights in relation to any processing of your personal data.


2. DEFINITIONS

The parties referred to in these Terms of Use shall be defined as follows:

  1. CinderTrack, Company, We, Us: As we describe above, we'll be referred to as the Company or CinderTrack. We, Us, Our, Ours and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.
  2. Users: Any individual who visits and uses the Site and/or creates a CinderTrack account(s). Referred to as End User(s), User(s).
  3. Sellers: Any User who signs up to sell products on CinderTrack. Sellers may be referred to as Seller(s), Vendor(s), Artist(s).
  4. Buyers: Any User who makes purchases on the platform. Referred to as Buyer(s).
  5. You, Your, Yours: Any second-person pronouns refer to You as a User. 
  6. Third Party Sites: The Services may link to websites owned by third parties (“Third Party Sites”). If you use these links, then you will leave the Service. We are not responsible for these Third Party Sites, whether or not we are affiliated with such Third Party Sites. Through our use, we do not endorse the organizations sponsoring such Third Party Sites or their products or services. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a Third Party Site or as a result of the presence of any third-party advertising on the Service.

3. About CinderTrack

Please be advised the below is a general description of CinderTrack. The specific terms regarding this subsection are contained within the entirety of these Terms of Use.

CinderTrack is an online multi-vendor marketplace. Our platform allows Users to Sell and Buy Multitracks in the form of digitally downloadable zip files. CinderTrack is a service provider. The actual contract for sale is directly between the Seller and Buyer. We charge Sellers a monthly subscription service to sell on our platform as well as provide server hosting for Sellers’ digitally downloadable products. We act as an agent on behalf of Sellers to collect and distribute payment from Buyers to Sellers. For this service we charge a fee to both the buyer and seller at the point of sale. The details of which can be found in Section12.

Any guidance we provide as part of our Services, such as pricing, listing, and sourcing is solely informational and Users may decide to follow it or not. Also, while we may help facilitate the resolution of disputes, CinderTrack has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.


4. Acceptance of Terms of Use

Please read these Terms of Use carefully before using the Platform, because they affect your legal rights and obligations. If you do not agree with any of these Terms of Use, or are not able to agree with any of these Terms of Use, please do not use the Platform. By using this Site, you will be deemed to have irrevocably agreed to these Terms of Use.

Each time you use the Platform, you reaffirm your acceptance of the Terms of Use and any applicable additional terms. If you do not agree to any of the provisions set forth in these Terms, you should not use the Platform. By accessing or using the Platform, registering an account, or by viewing, accessing, purchasing, streaming, uploading or downloading any information or content from or to the Platform, you represent and warrant that you have read and understood the Terms of Use, will abide by them, and that you are eligible to be able to use the platform. 

  1. Eligibility
    1. Age Restriction. The Site and Services are intended for use by persons 18 years of age or older. The Site and Services are not intended for children under the age of 13. Children under the age 18 but at least 13 years of age may use the Site and Services only with the verifiable consent of a parent or legal guardian who has agreed to be bound by these Terms and Conditions. SOME AREAS OF THE SITE MAY CONTAIN MATERIAL THAT IS INAPPROPRIATE FOR MINORS.
    2. You have not previously been suspended or removed from the Platform; and
    3. Your use of the Platform is in compliance with any and all applicable laws and regulations. 
    4. Your use of the Platform is in compliance with any existing agreements between you and any other party.
  2. Site Content Ownership. All materials and content on the Site and Services, including User Content, defined in Section 7a below, (collectively, the “Site Content”) are the proprietary property of us or our licensors (including other users of the Site), including respective copyrights, logos, slogans, trademarks, and service marks. As between you and us, you shall retain all rights in your User Content subject to the licenses granted in these Terms and Conditions.
  3. Site and Services Use License. Subject to these Terms and Conditions and only to the extent expressly permitted by the functionality of the Site and Services, you are granted a limited, non-exclusive, revocable, non-assignable, and non-transferable right to use the Site and Services and access and interact with Site Content. Except with respect to your use of certain Services in accordance with their specific terms and conditions that provide for or facilitate commercial activities, you understand that the Site and Site Content is for your personal and non-commercial use only. Except as expressly permitted by these Terms and Conditions, the functionality of the Site, or your own use of your User Content (i) no Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, sold, or otherwise used in any form or by any means, in whole or in part, and (ii) nothing herein should be construed as granting any license or right to use any Site Content, including trademarks, service marks, logos, slogans or taglines of us or third parties, or any software or code relating to the Site or Services.
  4. Site Downloads and Purchases. Certain functionality of the Site may expressly permit you to download or copy Site Content, such as music or other materials files from the Site (“Site Downloads”). Certain Site Downloads are available for free, and certain Site Downloads are only available by purchase (“Priced Downloads”). Applicable prices and payments for Priced Downloads are subject to our Service Fees Payments and Refund Policy in Section 14 below. The total price for a Priced Download will include any applicable fees. Prices for Priced Downloads may change at any time, and we do not provide price protection or refunds in the event of a price reduction or promotional offering. If a Priced Download becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Priced Download, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by us. Priced Downloads may be downloaded only once and cannot be replaced if lost for any reason without a new purchase.
  5. Abuse and Infringement. You agree that you will not use the Site or Services in any manner that is abusive, fraudulent, or unlawful, that infringes the copyright, trademark, or other intellectual property rights of any person or entity, that is inconsistent with these Terms and Conditions, or that could damage, disable, overburden or impair the Site or Services, in each case as determined in our sole discretion. Without limitation, you agree, represent, and warrant that:
    • (i) You will use the Site and Services in compliance with all applicable laws;
    • (ii) You will not use the Site or Services to infringe the copyright, trademark, or other intellectual property rights of any person or entity;
    • (iii) You will not harvest or collect email addresses or other contact information of other Site users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
    • (iv) You will not use automated scripts to collect information from, access, or otherwise interact with the Site;
    • (v) You will not upload, post, email, transmit or otherwise make available any content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, pornographic, lewd, lascivious, illegal, excessively violent, hateful, or racially, ethnically, or otherwise objectionable;
    • (vi) You will not create a false identity, or impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
    • (vii) You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
    • (viii) You will not use “spam,” “blast-faxes,” or recorded telephone messages to market or promote any materials relating to you on the Site or in connection with the Services;
    • (ix) You will not use or purchase third party services which are marketed or used to artificially increase your placement on the platform. Use of these services, or similar services, will result in the immediate termination of your account.
    • (x) You will not upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
    • (xi) You will not use the Site or Services to solicit, advertise, provide, sell, or offer, any third party sites or services, or similar or competing products or services;
    • (xii) You will not solicit Site users to register or sign up with another website, platform, or other service or entity;
    • (xiii) You will not use or attempt to use another user's account without authorization from us or create a false identity using the Site or Services;
    • (xiv) You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Site or Services or any software, documentation, or data related to the Site or Services;
    • (xv) You will not remove any proprietary notices or labels from the Site or Services or modify, translate, or create derivative works based on the Site or Services; and
  • AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, TO THE FULLEST EXTENT PERMITTED UNDER LAW.

5. Changes to the Terms of Use

We reserve the sole right at any time to modify, discontinue, or terminate any service or the site, or change, add, or delete portions of these terms and conditions without notice. We will post changes to these terms and conditions, if any, to the site. It is your responsibility to check the site periodically for changes. Following changes, We will revise the “effective date”. The new Terms shall take effect on that “effective date”. The then-current version of these Terms will supersede all earlier versions. You agree that Your continued use of the Platform after such changes have been published to Our Site will constitute Your acceptance of such revised Terms of Use. If You do not agree to changes to these Terms, You must cease using the Platform.

From time to time We may release new features, resources, or tools on the Site. Any new features, resources, or tools will be subject to these Terms and any updated version of these Terms as the case may be.


6. Account Creation and Your Account

  1. Each user of the Service is a “User.” Many aspects of the Platform are free to all Users. However, certain parts of the Platform require you to create an account by providing a valid email address, username, password and other information as prompted by the registration form. When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. For example, you may not register using the name of a musical artist (e.g., Nickelback) unless you have the rights to such name. You represent and warrant that the information you provide to us upon registration and at all other times will be accurate and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. We also reserve the right to create verified User accounts and to require additional information from you in order to provide you with a verified User account.
  2. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You must notify us immediately at accounts@cindertrack.com if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your account. We will not be liable for any loss or damage arising from unauthorized use of your credentials.
  3. You represent and warrant that if you create an account and use the Service on behalf of a business entity (e.g., a corporation), then you have the authority to bind the business entity in legal agreements and contracts and, by using the Service, bind such business entity to these Terms.
  4. You represent and warrant that all Registration Information will be true, accurate, complete, and current and that you will promptly update your Registration Information as necessary such that it is, at all times, true, accurate, complete, and current. We may use all Registration Information in accordance with our Privacy Policy.
  5. You are responsible for maintaining access to the email address associated with your account. We are unable to restore access to your account if you lose access to the email address associated with the account.
  6. You are responsible for keeping your account active. If a user does not log in to an account for six (6) months or more from the date of the last log in, the account may be considered inactive. Inactive accounts may be permanently removed without notice.

7. Content Submitted By You

  1. User Content
    1. You are solely responsible for all materials and content that are submitted by you or through your account for posting, publication, display, distribution, performance, or other use on the Site or in connection with any Service, including without limitation, music, sound recordings, musical works, compositions, videos, photographs, pictures, graphics, names, likenesses, images, copyrights, trademarks, service marks, logos, biographical information, chat, messages, files, code, data, metadata, text, software, links, your Registration Information, content from your Third-Party Account, and any other information or materials (“User Content”).
    2. We are not responsible for any User Content that may be lost or unrecoverable through your use of the Site or Services, and you are encouraged to archive your User Content regularly and frequently.
    3. You must submit User Content to the Site and Services in compliance with our submission specifications. Our submission specifications are available in your Dashboard or otherwise on the Site. We reserve the right to refuse to accept and/or cause the removal of any User Content for any reason and at our sole discretion and without notice to you.
    4. As between you and us, and subject to our rights in these Terms and Conditions, you shall retain all rights in the User Content and nothing in these Terms and Conditions shall constitute a transfer to us of ownership of any User Content.
    5. You hereby acknowledge and agree that we may, at our sole discretion, disclose User Content in order to: (A) comply with law enforcement, court orders, or the legal process; (B) protect the rights and safety of individuals; or (C) settle disputes over intellectual property ownership. You understand and agree that in connection with the rights granted herein, we have the right, but no obligation, to remove, monitor, market, promote, advertise, or otherwise use your User Content.
  2. Licenses to User Content Granted to Us
    1. By submitting User Content to the Site or in connection with any Service, you automatically grant to us a non-exclusive, transferable, royalty free, license throughout the universe, and in any manner and media now known or hereafter developed, to prepare, review, copy, reproduce, convert, host, distribute, transmit, stream, publicly perform, display, modify, adapt, excerpt (in whole or in part), publish, promote, advertise, market, create derivative works from, and otherwise use all or any portion of the User Content, and to grant and authorize sublicenses of the foregoing, in connection with the Site and Services and the functionality thereof; provided, however, we will not sell or otherwise commercially distribute for a fee User Content except in connection with your express use of a Service or program offered by us that provides such functionality. Except as may be specifically provided in connection with any particular Service, we have no obligation to pay you or anyone else any amounts, including record or publishing royalties, performance fees, license fees, or union, guild, or collective bargaining fees, for the distribution, public performance, or other uses of your User Content as authorized in these Terms and Conditions.
    2. The foregoing grant of rights includes, without limitation, our right to (but not obligation to):
      1. use User Content, including names, pictures, likenesses, images, voices, performances, biographical materials, and web links to websites that you control, in each case in connection with marketing, advertising, or promoting User Content, you, the Site, the Services, or us;
      2. submit or transmit User Content to third parties in connection with any applicable Services or program offered by us which you elect to use, in any format (e.g., MP3, streaming, or otherwise) in accordance with the functionality of such Service or program;
      3. display any and all lyrics associated with a musical composition embodied in User Content in connection with the Site or Services or program offered by us;
      4. edit or modify User Content in our sole discretion in connection with the Site, Services, or program offered by us and without any approval rights by you; and
      5. publicly perform and transmit your sound recordings and musical compositions in connection with the Site, Services, or a program offered by us, including, but not limited to, by interactive and non-interactive streaming on the Site or via a Service. If you have affiliated with a performance rights organization (“PRO”) with respect to your public performance rights, such as BMI, ASCAP, or SESAC, then you may be prohibited from granting the same rights to us, or a grant of public performance rights to us may prevent a PRO from collecting royalties on your behalf. In certain situations a PRO may require that you provide the PRO with notice if you are granting public performance rights to another party. If you have an agreement with a PRO that includes such a provision, you are solely responsible for providing such notice to the PRO. You understand that no fees or payment of any kind whatsoever shall be due to any PRO or music publisher for use of your User Content as authorized in these Terms and Conditions.
    3. To the extent you link to or embed your YouTube videos to your Site profile your profile will utilize YouTube’s API Services and you agree to be bound by the applicable YouTube Terms of Service.
    4. The grant of rights in this section will survive your removal of User Content from the Site, the termination of your use of the Site or Service, or any other termination of these Terms and Conditions unless we receive written notice of termination of this license from you, at which point this license will expire and we will stop using the specified User Content within thirty (30) days; provided, however, that with respect to Site Downloads, the grant of rights to end users will survive your removal of such User Content from the Site indefinitely.
  3. Additional Agreements
    1. Without limitation of the rights granted herein, we and you may enter into additional agreements to confirm the rights granted herein, expand scope of rights granted to us, or otherwise with respect to the User Content, and to the extent such other agreements conflict with these Terms and Conditions, the terms of such other agreements shall control.
  4. Representations and Warranties
    1. By submitting User Content to the Site or in connection with any Service, you acknowledge, represent, and warrant that:
      1. you own or control all necessary rights in and to the User Content, and you have the full right and authority to grant the rights, licenses, and permissions in these Terms and Conditions;
      2. the exercise of the rights granted by you herein shall not violate any laws or otherwise infringe upon the rights of any person or entity, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful materials;
      3. the exercise of the rights granted by you herein shall be without any obligation to make any payment of any nature to you (except as expressly provided in connection with any Service) or any other person or entity;
      4. to the extent that you receive payments from us in connection with any Service, you acknowledge and agree that any such payments to you are inclusive of all payments otherwise due to any person or entity; and
      5. to the extent you do not own any underlying musical compositions, sound recordings, samples, publicity rights, or other materials or content in your User Content, it is your obligation to secure all appropriate permissions, clearances, licenses, or other authorizations and agreements, and, as applicable, to pay directly all third-party fees and royalties as may be required, including, but not limited to, with respect to artists, band members, authors, co-authors, copyright owners and co-owners, publishers, producers, or any other person who performed in the making of your User Content, and in connection with mechanical royalties, digital phonograph delivery royalties, public performance royalties, payments that may be required under any collective bargaining agreements or statutory schemes, or any other royalties, fees, and/or sums payable with respect to your User Content, and at our request you shall provide us with confirmation of such authorizations and payments.

8. Licensing

  1. Purchase License - By purchasing a multitrack, users are purchasing a single use license for all material included within the downloadable zip file. The license issued to users for this material is subject to the “Custom License Terms” (defined below) issued by the Seller and displayed in the Product Attributes. If no custom license is provided by the Seller, the Buyer will be issued a single use license subject to the “Default License Terms” (defined below). ALL licenses, including Custom Licenses, granted to Buyers are bound by the “Licensing Exceptions” included within this agreement.
  2. Default License Terms If a Seller does not include their own Custom License, the Buyer will receive a single use license subject to the following conditions:
    1. Copyright - All content purchased and received in the downloadable multitrack zip file is copyrighted material owned by the Seller. Purchaser may not copy, reproduce, distribute, sell, lease, perform, post, share, upload, sync to video, publicly display or make any content publicly, privately, or commercially available without express written permission from the Seller.
    2. Non-Transferable - All materials received within the downloadable multitrack zip file are non-transferable to any other party for any reason.
    3. No Use in Original Content - All content received in the downloadable multitrack zip file may not be included or used in any original content made by the Buyer unless they have express written permission from the multitrack Seller.
    4. Derivative Works and Adapted Material - Buyers are allowed to privately create derivative work and/or adapted material using purchased multitracks for non-commercial personal entertainment and educational purposes only. The recording copyrights for all derivative works and adapted material created from any content within the multitrack are owned by the multitrack Seller.
    5. 3rd Party Uploads Prohibited - All uploads to other platforms are prohibited unless agreed upon by the Seller. Prohibited platforms include, but are not limited to: YouTube, Soundcloud, ReverbNation, Bandcamp, Splice, Spotify, Apple Music, Amazon Music, or any music distribution services such as, but not limited to: CDBaby, or TuneCore.
    6. Use in Advertising - Contact Seller for permission to use multitracks in advertisements or product demonstrations. Requires a written agreement between Buyer and Seller.
    7. Educational Purposes - Contact Seller for permission to use multitracks for educational purposes. Requires a written agreement between Buyer and Seller. 
  3. Custom License - Sellers are able to include their own Custom License Terms for each multitrack they make available for sale. These Custom License Terms may replace or be used in conjunction with the Default License Terms. Users who purchase multitracks from Sellers are bound by the License terms of issued by the Seller. Custom Licenses are subject to the following License Exceptions: 
  4. License Exceptions - The following Exceptions shall apply to ALL Licenses granted to Buyers, including the above Default License and Custom Licenses. All Sellers who sell on CinderTrack agree that these Exceptions shall supersede any terms in their own Custom License even if their own licensing agreements directly counters or contradicts the following terms:
    1. Private/Educational Derivative Work and Adapted Material - Buyers are allowed to privately create derivative work and/or adapted material using purchased Multitracks for non-commercial personal entertainment and educational purposes.
    2. CinderTrack Portfolio - Users may upload Derivative Work and Adapted Material created from purchased multitracks to their CinderTrack Portfolio (described in Terms of Use Section 9).
    3. Buyer Protection - Sellers may not use a Buyer’s Derivative or Adapted Material created from purchased multitracks without a written agreement between the Buyer and Seller. This Exception exists to give the Buyer the ability to be compensated for their work should the Seller wish to use or release any Derivates or Adapted Material created by the Buyer. This exception also exists to protect Sellers from unknowingly committing copyright infringement in the event the Buyer incorporated copyrighted material in the creation of the Derivative or Adapted Material.
  5. License Enforcement - License enforcement shall be enforced by Sellers. All agreements are between the Buyer and Seller. CinderTrack is not responsible for any outcomes resulting from any agreements made between Buyers and Sellers. We take no responsibilities for your actions outside of CinderTrack.

9. CinderTrack Portfolio 

  1. CinderTrack Portfolio allows Users to showcase Derivative Works and Adapted Material created from purchased multitracks. In addition, Users may also upload original works, or works in which they have rights to upload that they wish to showcase. Users must properly credit their contributions to the derivative or adapted material.
  2. Users may provide links to their CinderTrack Profile Page for purposes of showcasing and displaying their Derivate Work and Adapted material with the intent to advertise services to new, third party potential clients. Sellers are not entitled to any compensation should new clients be acquired by the Buyer from showcasing Derivatives and Adapted Material created from purchased multitracks on a User’s CinderTrack Portfolio.
  3. Number of plays of Derivative Works and Adapted material uploaded to a User’s CinderTrack Portfolio are not tracked, and no royalties will be collected or paid out to any party from plays of Derivative Work and Adapted Material. Sellers can not seek royalty payments from Buyers who upload Derivative Works and Adapted material to their CinderTrack Portfolio.
  4. Users are solely responsible for all content uploaded to CinderTrack Portfolio. Without limitation, your submission and our use of your content in connection with your CinderTrack Portfolio is subject to these Terms of Use and such submissions shall be deemed User Content, defined in Section 7 “Content Submitted by You” and subject to all applicable representation, warranties, and agreements thereunder. The content displayed on CinderTrack Portfolio may not contain any content which we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable. We reserve the right to include additional content, branding, and promotional messages in your CinderTrack Portfolio. We may remove any content uploaded to CinderTrack Portfolio at our sole discretion for any reason, at any time. If we remove content from your CinderTrack portfolio, we will notify you with a brief summary of our reasoning.


10. Music Streaming

CinderTrack is a multi-vendor e-commerce marketplace, not a digital service provider (DSP). We do not offer or monetize interactive or non-interactive streaming services. All music uploaded and playable on the platform is intended for product preview and promotional showcase only. We do not track the number of plays of any music uploaded to the platform.

By uploading any music to the platform, Users accept that they will be ineligible to receive any type of streaming royalties from plays originating on the platform. Users are solely responsible for the content they upload to the platform and do so at their own discretion. All uploads are pursuant to Section 7 “Content Submitted by You” of these Terms of Use and are subject to all applicable representation, warranties, and agreements thereunder of this agreement.


11. Seller Responsibility for Legal Compliance and Taxes


CinderTrack cannot give tax advice, Sellers should contact the appropriate tax authority for more information about their tax obligations.

  1. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any CinderTrack service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on CinderTrack’s net income). This includes sales taxes applicable in each state, depending on the threshold required for collection. Please contact your tax professional to determine whether or not you have sales tax liability. This responsibility includes applicable customs and fees for import and export sales; CinderTrack assumes no responsibility for any losses, fees, or confiscations related to importing and exporting products purchased through CinderTrack. 
  2. If you complete 200 transactions or more and receive over $20,000 in gross income from the site, exclusive of CinderTrack’s fees, you will receive a Form 1099-K and be obligated to pay income tax on your earnings. CinderTrack is not responsible, in any manner, for paying taxes on your earnings or your use of the Site.
  3. CinderTrack does not offer sales tax collection functionality for Sellers, and sales tax will not be collected on behalf of Sellers for any transactions occurring on the platform. This does not exempt Sellers from their tax obligations. Sellers are able to view which jurisdictions in which sales occurred within their accounts, but it is the sole responsibility of the Seller to determine which jurisdictions they are required to pay all fees and taxes associated with using CinderTrack as a CinderTrack seller. 
  4. Sellers must follow all tax regulations that apply to CinderTrack sales. Tax-related responsibilities may include:
    1. Paying sales tax on sales made using our platform
    2. Paying income tax on profits generated from sales made on our platform
  5. The Supreme Court ruled in favor of South Dakota in June 2018, which removed the requirement that certain retailers have a physical presence in a state in order for that state to impose sales tax obligations on retailers. Regardless of where you're physically located, if you do business in certain states, those states may require you to pay applicable taxes on your transactions. For more information on these new tax requirements, we recommend that you consult with your tax advisor.
  6. Miscellaneous Tax Terms
    1. In any jurisdiction where CinderTrack has an obligation to collect sales taxes on sales you make using CinderTrack Services, we may collect such sales taxes from the buyer in transactions via any means available to us.
    2. Seller fees don't purchase exclusive rights to item exposure on CinderTrack, whether on a web page, mobile app, or otherwise. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, Sellers.
    3. All sales are transactions that occur are between Buyer and Seller. CinderTrack fees are for the use of the service, and are not sales. Fees are collected from both the buyer and seller for each transaction. For more information on fees, see our Fee Policy in our User Agreement.


12. Fees and Transaction Mechanics

  1. Certain parts of the Site and Services may be accessed and used without charge. For use of certain Services, you are required to pay applicable fees which may change from time to time subject only to your right to terminate such Services in accordance with the terms thereof. Fees vary by Service. You are responsible for payment of all applicable fees incurred by your Site account. In any jurisdiction where we have an obligation to collect sales taxes, we may collect such sales taxes from you via the payment method on file, or via any other means available to us.
  2. CinderTrack Role - CinderTrack acts as an agent for Sellers to collect and distribute payments from Buyers. Purchases will appear as “CINDERTRACK LLC” in a Buyer’s billing statements on behalf of Sellers. All transactions and interactions on CinderTrack are between Users. At no point will CinderTrack be a party to or be responsible for any transaction or interaction between Users.
  3. Stripe Payment Processing - Any payments made on the platform are processed by Stripe, the company that operates Stripe.com. When making or receiving a payment on this Site, You will also be subject to the Terms of Service and Privacy Policy of Stripe.com and should read them as they differ from Our Terms and Privacy Policy. Sellers are required to create a Stripe account to be able to create a CinderTrack Seller Account and receive payment from purchases. All transaction mechanics and payment functionalities are processed through Stripe. Our platform uses Stripe to automatically process and apply all fees at checkout. All funds distributed to a Seller’s Stripe account are after all transaction fees. Sellers are responsible for any additional Stripe fees associated with transferring funds to their bank account. Details of which can be found at www.stripe.com.
  4. DEFINITIONS:
    1. Sale Price
      • The price of the multitrack(s) after applied discounts. The Sale Price does not include taxes or fees.
    2. Transaction Price
      • The final price of the multitrack(s) after applied discounts + taxes and fees. Transaction Price is calculated per Seller. If a Buyer’s shopping cart contains multitracks from multiple Sellers, there is a Transaction Price for each individual Seller.
    3. Total Transaction
      • The final total the Buyer pays for all multitracks from all Sellers after discounts, taxes, and fees. In transactions between a Buyer and a single Seller, the Transaction Price and the Total Transaction are the same.
  5. Transaction Fees - Applicable Fees are collected on behalf of the Seller and are distributed and paid accordingly. There are three (3) fees that occur in every transaction:
    1. Seller Fee: 20% of the Sale Price after discounts, paid by the Seller to Us.
      • This fee is collected from the Seller by CinderTrack as a commission for the transaction services. This fee is automatically deducted from the payouts issued to Sellers.
    2. Service Fee: 10% of the Sale Price after discounts, paid by the Buyer to Us.
      • We collect a 10% transaction fee from Buyers based on the total sale price after applied discounts. This fee is listed as “Service” at checkout. This fee is paid directly by Buyers to Us and does not effect payouts to Sellers.
    3. Stripe Processing Fee: 2.9% +$.30 of the Transaction Price (Sale Price after discounts + CinderTrack Buyer Fee). This fee is paid by Us on behalf of Sellers. Sellers are not charged a Transaction Stripe Fee.
  6. Change In Services - We may, at our sole discretion, change some or all fees at any time. In the event we introduce new services, the fees for those service are effective at the launch of the service. Terms of which will be updated here.
  7. Sample Transaction:

Multitrack Price: $40

Discount: 50%

Multitrack Sale Price: 

$40 x 50% = $20


Service Fee (paid by Buyer to CinderTrack): 10% of Sale Price 

$20 x 10% = $2


Transaction Price: Sale Price + Service Fee

$20 + $2 = $22


Stripe Processing Fee (paid by CinderTrack to Stripe): 2.9% of Transaction Price + $.30

$22 x 2.9% = $.64

$.64 + $.30 = $.94


Seller Fee (paid by Seller to CinderTrack): 20% of Sale Price 

$20 x 20% = $4


Seller Profit from Sale: Sale Price - CinderTrack Fee

$20 - $4 = $16.00


13. Seller Account Subscription Service

  1. Signup and Billing Cycle
    • After signup, Seller’s will be offered to choose a Selling Plan. Plans allow Seller’s to choose the number of songs they wish to sell. Plans are offered as a monthly subscription service.
    • Plan Tiers - There are 3 separate plans, which are based on the number of songs a seller can sell.
      • Plan 1: 1-5 Songs - Sellers are able to sell 5 songs with no monthly subscription. Referred to as the “Free Plan”
      • Plan 2: 6-10 Songs - Sellers are able to sell 6 - 10 songs for a monthly subscription of $19.99
      • Plan 3: 11-15 Songs - Sellers are able to sell 11 - 15 songs for a monthly subscription of $29.99
      • To be able to sell more than 15 songs, Sellers must contact us at accounts@cindertrack.com
    • Except for the Free Plan, Users must pay a monthly subscription when signing up to be Seller. The corresponding fee for that membership level and term will be charged to the payment information that Seller provides when first selecting a paid plan. The date that Sellers provide payment for their subscription is referred to as the “Initial Payment Date”. This date may be different than the signup date. After the Initial Payment Date, unless Sellers cancel their subscription, Sellers will be automatically charged fees associated with their plan to continue their membership on a recurring basis on each monthly anniversary of the Initial Payment Date.
  2. Automatic Renewal. 
    • Your subscription to a service will continue indefinitely until cancelled by you. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing to that service. You agree that your account will be subject to this automatic renewal feature. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription to a service, please log in to your site profile and click on your user administration button, then click on “settings” in the drop down menu, then select “subscription”, and click “CANCEL MY SUBSCRITPION” next to the subscription you wish to cancel. 
    • If you cancel your subscription to a service, you may use your subscription until the end of your then-current subscription term and your subscription will not be renewed thereafter. However, you will not be eligible for a prorated refund of any portion of the service fee paid for the then-current subscription period. By subscribing, you authorize us to charge your credit card, debit card or other payment method at such time and again at the beginning of any subsequent renewal subscription period. Upon the renewal of your subscription to a service, if we do not receive payment, you agree that we may either terminate or suspend your subscription and continue to attempt to charge your payment method provider until payment is received (upon receipt of payment, your account will be activated, if it was previously suspended, and for purposes of automatic renewal, your subscription commitment period will begin as of the day payment was originally scheduled to be received). If you do not terminate your subscription and/or if you continue to use the services, you agree that we are authorized to charge the payment method you designated in your site account. We may also seek payment directly from you. Your charges may be payable in advance, per usage, or as otherwise described when you initially subscribed to the service.


14. Refund Policy

  1. Sales Refunds
    1. Sellers may individually offer refunds. Refunds are made at the discretion of the Seller, and the refund agreement shall be between Buyer and Seller.
    2. Digital content that you have started downloading is not eligible for a refund unless the content is faulty.
    3. CinderTrack will provide a refund in the event of product malfunction. This requires that the user report the malfunction to accounts@cindertrack.com while the service is still active, so that the malfunction can be verified by us.
    4. If the content is faulty due to an incorrect upload made by the Seller, the Seller will be responsible for issuing a refund to the Buyer.
  2. Chargebacks - You agree not to cause your credit or debit card company to reverse or “chargeback” any Service Fees charged in accordance with these Terms and Conditions; and in the event you do so, we may terminate your use of the Site and Services, and you agree to reimburse us for any costs incurred in responding to such chargeback, including, without limitation, our actual costs paid to the credit or debit card company, including chargeback fees, and the value of the time our employees spend on the matter as determined in our discretion in good faith.


15. Intellectual Property Policy

  1. We respect the intellectual property of others and takes the protection of intellectual property seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service. Our intellectual property policy is to (i) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content posted to the Service by “repeat infringers.” We consider a “repeat infringer” to be any User that has uploaded User Content to the Service and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
  2. The DMCA provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the Service infringe your intellectual property rights, then you (or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
    1. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
    2. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
    3. Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
    4. Your name, address, telephone number, and email address (if available);
    5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  3. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent to:
    • CINDERTRACK LLC, Attn: Copyright Compliance Department
    • 5865 Ridgeway Center Pkwy, Suite 389
    • Memphis, TN 38120
    • Telephone: (844) 830-8267
    • Email: accounts@cindertrack.com
  1. Counter Notification - If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice. If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act. To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in Section 15.c, and include substantially the following information:
    1. A physical or electronic signature of the subscriber;
    2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
    4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under Section 15.b above or an agent of such person.
  2. False Notifications of Claimed Infringement or Counter Notifications - The Copyright Act provides that:
    1. [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [our] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
    2. 17 U.S.C. § 512(f).
    3. We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
    4. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. The foregoing is not intended to provide you with legal advice.


16. INDEMNIFICATION:

You agree to fully indemnify and hold us and our subsidiaries, affiliates, directors, officers, agents, contractors, partners, affiliates, employees, contractors, co-branders, advertisers, and other partners (collectively, the “Related Parties”) harmless, and upon our request, defend us and/or the Related Parties, from and against any and all losses, liabilities, damages, claims, costs, expenses, or demands (including reasonable attorneys' fees and costs), due to or arising out of (i) your use of the Site or Services; (ii) your violation or breach of any representation, warranties or other terms in these Terms and Conditions; (iii) your violation of any rights of any third party; and (iv) any dispute between you and any other user of the Site or Services. Without limitation, you agree to reimburse us and our Related Parties on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this Section. We shall promptly notify you of any such claim, and you may assume control of the defense of such claim with counsel subject to our reasonable approval, provided that you obtain and post an appropriate bond for our benefit, and we shall have the right in all events to participate in the defense thereof. In accordance with Section 7(c) below, if a claim is made we will have the right to withhold payment of any monies due you in an amount reasonably related to the claim and potential expenses. Your sole remedy as a result of any breach or alleged breach by us of these Terms and Conditions or other applicable terms and conditions or agreements is limited to your ability to discontinue use of the Site and your ability to terminate your participation in any Services in accordance with the terms thereof.


17. User Disputes

We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among Users of the Service and will not involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.


18. Limitations and Disclaimers

THE SITE, THE SERVICES, AND THE CONTENT THEREON ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICES. Without limiting the foregoing:

  1. We and the Related Parties are not responsible for any incorrect or inaccurate information in the Site Content. We and the Related Parties are not responsible for the content of, accuracy of, or statements or opinions expressed by third parties in any Site Content, including any User Content or in advertisements or solicitations. We are not responsible for the conduct, whether online or offline, of any user of the Site. Site Content is not investigated, monitored, or checked for accuracy or completeness by us. We do not make editorial decisions related to User Content. Inclusion of any Site Content, including links to other websites, does not imply approval or endorsement of the Site Content by us.
  2. Your interactions with organizations and/or individuals found on or through the Site or Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You agree that we and the Related Parties shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between you and any third party, you understand and agree that we are under no obligation to become involved.
  3. You understand the speculative nature of the music industry, and we make no guarantees whatsoever with respect to the marketing, promotion, acceptance, development, or popularity of you, your band, your music, or otherwise in connection with your use of the Site or Services; and we further make no guarantees whatsoever that any materials you create or distribute using our Site or Services, including your music, will achieve any results or be purchased or otherwise used by any third party.
  4. The Site and the Services may be temporarily unavailable from time to time for maintenance or other reasons. We are not responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Site or the Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any web site or blocking from the destination mail servers, including injury or damage to any person's computer related to or resulting from participating or downloading materials in connection with the Site or the Services. Under no circumstances will we be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Services, the Site, or any Site Content.
  5. By using the Site and/or Services, you hereby release us and the Related Parties from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to your use of the Site and/or Services. If you are a California resident, you represent that you are familiar with Section 1542 of the California Civil Code and you hereby waive and relinquish any right and benefit to which you may have under Section 1542 to the full extent that you may lawfully do so in connection with the subject matter hereof. Section 1542 states:
    • A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
  6. IN NO EVENT WILL WE AND THE RELATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  7. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL THE AGGREGATE OF OUR AND THE RELATED PARTIES' LIABILITY TO YOU FOR ANY CAUSE, LOSS, COST, DAMAGE, OR CLAIM WHATSOEVER, INCLUDING ATTORNEYS' FEES AND COSTS AND EXPERT WITNESS FEES AND COSTS, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE LESSER OF: (A) THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES FOR THE PRECEDING THREE (3) MONTHS; AND (B) TWO HUNDRED FIFTY DOLLARS ($250.00 U.S.). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THESE TERMS AND CONDITIONS.

19. Confidentiality:

You acknowledge and agree that in the course of using certain Services you may become aware of certain otherwise confidential information related to our business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential.


20. Usage Data:

We may collect certain tracking and usage data generated or provided by users who visit or interact with your profile on the Site, or by users of products or other materials distributed in connection with your use of certain Services, including, but not limited to, personally identifiable information (“Usage Data”). We may provide all or part of the Usage Data to you. You agree to comply with all applicable laws with regard to your use of Usage Data. You will not transfer or disclose any Usage Data to any third party. We are not responsible for the accuracy of Usage Data, and we disclaim any and all liability relating thereto.


21. Termination:

  1. You may terminate your use of the Site at any time. You may terminate these Terms and Conditions with respect to any Service provided you have paid all applicable Service Fees by effecting a termination from your Dashboard.
  2. We may cancel your user registration and terminate your use of the Site or Services at any time with or without cause, in our sole discretion, and with or without notice, including for your failure to make any payment when due or your breach of your representations, warranties, and covenants in these Terms and Conditions; provided, however, that we have no obligation to monitor your use of the Site or Services.
  3. We may delete any of your User Content, information, or other data from the Site or Services at any time, and we have no obligation to maintain copies of any deleted information.
  4. Any provisions of these Terms and Conditions that by their nature should continue after termination of your use of the Site or any Services will continue to apply even after the expiration or termination of these Terms and Conditions or your use of the Site or any Services


22. Arbitration, Class Waiver, and Waiver of Jury Trial

  1. We are not a party to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. Disputes between Users are subject to Section 17. This Section governs disputes between a User and us.
  2. Generally. In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
  3. Exceptions. Despite the provisions of Section 22.b, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to:
    1. bring an individual action in small claims court;
    2. pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
    3. seek injunctive relief in a court of law in aid of arbitration; or
    4. to file suit in a court of law to address an intellectual property infringement claim.
  4. Arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ (the “JAMS Rules”). The JAMS Rules are available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
  5. Authority of Arbitrator. The arbitrator will have exclusive authority to (i) determine the scope and enforceability of this Section 22 and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Section 22 including, but not limited to, any claim that all or any part of this Section 22 is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including this Section 22).
  6. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is: CINDERTRACK LLC, 5865 Ridgeway Center Pkwy, Suite 389 Memphis, TN 38120. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
  7. Fees. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
  8. No Class Actions. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
  9. Modifications to this Arbitration Provision. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
  10. Enforceability. If Section 22.h is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 23 will govern any action arising out of or related to these Terms.


23. GOVERNING LAW:

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Tennessee, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. Those who use the Site or Services from other jurisdictions do so at their own volition and are responsible for compliance with local laws. Any dispute or claim arising out of, or in connection with, these Terms and Conditions shall be finally settled by binding arbitration in Nashville, Tennessee. The arbitrator shall apply the law of the State of Tennessee, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. You agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys' fees. THE ARBITRATION CAN RESOLVE ONLY YOUR AND/OR OUR INDIVIDUAL CLAIMS, AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO ENTERTAIN OR ARBITRATE ANY CLAIMS ON A CLASS OR REPRESENTATIVE BASIS, OR TO CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. In the event that the forgoing arbitration provision is held invalid or unenforceable, then any dispute with respect to these Terms and Conditions shall be brought and heard in the Tennessee state courts located in Davidson County, Tennessee. In such event, you consent to the in personam jurisdiction and venue of such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by facsimile or by first class mail, and shall be deemed effectively given upon receipt.


24. MISCELLANEOUS:

If any provision of these Terms and Conditions is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of these Terms and Conditions shall continue in full force and effect. Nothing in these Terms and Conditions shall be deemed to confer any third-party rights or benefits. These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Our delay or failure to exercise any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. These Terms and Conditions do not, and shall not be deemed to, constitute a partnership or joint venture between you and us, and neither you nor we, nor your or our respective directors, officers, employees, or agents shall, by virtue of the performance of the obligations under these Terms and Conditions, be deemed to be an agent or employee of the other, and neither you nor we has the authority to bind the other under any contract, agreement, or otherwise.


25. NOTICES:

All notices required by these Terms and Conditions shall be in writing and shall be sent (i) by you via your Dashboard, (ii) by us via your Dashboard or your email address of record; and notice shall be effective on the date it is officially recorded as delivered by return receipt or equivalent.

For questions regarding these Terms and Conditions, please contact accouts@cindertrack.com

© 2020 CINDERTRACK LLC. All rights reserved.