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BOOMY Terms of Use

Please read these Terms of Use (the "Agreement") carefully. Your use of the Site and Service (as defined below) constitutes your consent to this Agreement.

This Agreement is between you and Boomy Corporation ("Boomy" or "we" or "us") concerning your use of (including any access to) the Boomy site located at https://boomy.com/ (together with any materials or services available therein, and any successor site(s) and service(s), the "Site") and Service (as defined below). This Agreement hereby incorporates by reference any additional terms and conditions posted by us through the Site, or otherwise made available to you by us.

By using the service, you affirm either (1) that you are of legal age in your jurisdiction to enter into this Agreement or, (2) if you are not of legal age in your jurisdiction but are older than twelve (12), that you have obtained parental or guardian consent to enter into this agreement. The service is not available to individuals who are under the age of thirteen (13).

If you are an individual accessing or using the Site on behalf of, or for the benefit of, any corporation, partnership, group, Organization or any other entity with which you are associated (an "Organization"), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to "you" and "your" in this Agreement will refer to both the individual using the Site and to any such Organization.

This Agreement contains a mandatory arbitration provision that, as further set forth in Section 19 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.

1 Changes.

We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.

Your use of the Service following any changes to this Agreement will constitute your acceptance of such changes. The "Last Updated" legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Site or Service (including access to the Site via any third-party links); charge, modify or waive any fees required to use the Site or Service; or offer opportunities to some or all users.

2 Information Submitted Through the Site.

Your submission of information through the Site or Service is governed by Boomy's Privacy Policy, located at https://boomy.com/privacy (the "Privacy Policy"). You represent and warrant that any information you provide in connection with the Site or Service is and will remain accurate and complete, and that you will maintain and update such information as needed.

3 Jurisdictional Issues.

The Site and Service are each controlled or operated (or both) from the United States, and is not intended to subject Boomy to any non-U.S. jurisdiction or law. The Site or Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site or Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service's availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.

4 Service.

Through the Site, Boomy makes available a service that can be used to generate fully produced music tracks using simple settings determined and provided by Boomy (the "Service"). Any track, recording, stem or song generated by or in connection with your use of the Service, including the composition therein and the sound recording thereof, is solely owned by Boomy (as further set forth in Section 8.1 below) and is referred to herein as a "Track." Some features of our Service are only available to registered users who subscribe such features (see "Plans and Transaction" below). Further information regarding how the Service works, the different plan options made available by Boomy and your ability to license certain rights to a Track, can be found at the pages located at https://boomy.com/pricing.

5 Rules of Conduct.

In connection with the Site and Service, you must not:

  • Use the Site or Service for any commercial use except as expressly authorized herein.
  • Post, transmit or otherwise make available through or in connection with the Site or Service any materials that are or may be: (a) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others.
  • Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without Boomy's express prior written consent.
  • Post, transmit or otherwise make available through or in connection with the Site or Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a "Virus").
  • Use the Site or Service for any purpose that is fraudulent or otherwise tortious or unlawful.
  • Harvest or collect information about users of the Site or Service.
  • Interfere with or disrupt the operation of the Site or Service or the servers or networks used to make the Site or Service available, including by hacking or defacing any portion of the Site or Service; or violate any requirement, procedure or policy of such servers or networks.
  • Restrict or inhibit any other person from using the Site or Service.
  • Reverse engineer, decompile or disassemble any portion of the Site or Service, except where such restriction is expressly prohibited by applicable law.
  • Remove any copyright, trademark or other proprietary rights notice from the Site or Service.
  • Frame or mirror any portion of the Site or Service, or otherwise incorporate any portion of the Site or Service into any product or service, without Boomy's express prior written consent.
  • Create multiple Site accounts or share your Site account with any person.
  • Systematically download and store Site or Service content.

Use of the Service requires a compatible device, Internet access and may require obtaining updates or upgrades from time to time. You are responsible for obtaining, maintaining, updating, upgrading and paying for all hardware and all telecommunications and other services needed to use the Service.

6 Plans and Transactions.

The Service is made available pursuant to different plans (each a "Plan"), some of which are subject to certain charges.

More information regarding the Plans, including the prices and features associated with each type of Plan can be found here.

6.1 Membership Plans.

Certain features of the Service are only available to users who subscribe to the certain Plans(collectively, the "Membership Plans"). More information regarding the Membership Plans, including the prices and features associated with each type of Membership Plan can be found here.

If you wish to use a Membership Plan or make any other transaction (for example, if you license the rights to a Track), you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating transactions. Verification of information may be required prior to the acknowledgment or completion of any transaction.

You agree to pay all charges incurred by you or on your behalf through the Site or Service, at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your transactions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.

6.2 Term and Renewal of Membership Plans.

If you select our monthly payment option, your Membership Plan will run a month to basis and will automatically renew at the end of each month, unless you cancel your Membership Plan before the applicable date of renewal.

If you select our annual payment option, your Membership Plan will be for a twelve (12) month period, and your Membership Plan will automatically renew for additional, successive twelve (12) month periods thereafter. We will automatically charge your account for the associated Membership Plan fee on the date of commencement of each applicable twelve (12) month renewal period, unless you cancel your Membership Plan before the applicable date of renewal.

6.3 Upgrading/Downgrading Membership Plans.

You can upgrade or downgrade between Membership Plans at any time on the Service. If you upgrade or downgrade you will immediately be charged the difference in price or you will be refunded with a reasonable time. This is determined based on how far you are into your initial Membership Plan at the time you upgrade or downgrade. Any refund related to a change in a Membership Plan will go back to the payment method used at the time of your purchase of the original Membership Plan.

6.4 Changes to the Membership Plans.

You acknowledge and agree that the Plans, including associated pricing and features, are subject to change from time to time. In the event of any increase in the price or material reduction in the features of any Membership Plan which you have purchased, such change(s) will be reasonably communicated to you and will only take effect with respect to any subsequent renewal of your Membership Plan. In all other cases, where Boomy proposes to make changes to any type of Membership Plan you have purchased, Boomy will reasonably notify you of the proposed changes. You will have no obligation to continue using the Service following any such notification, but your continued use of your Membership Plan will constitute your acceptance of the changes to your Membership Plan.

7 Registration; User Names and Passwords.

You may need to register to use all or part of the Site or Service. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only, should be kept confidential and may not be shared with any other person; you, and not Boomy, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account. You further agree to maintain and update your registration information as required to keep it accurate, current and complete. We may terminate your rights to use the Site or Service if any information you provide is false, inaccurate or incomplete.

8 Tracks.

Subject to the terms and conditions of this Agreement and to the features and settings made available by Boomy to you as part of the Services, you may use the Service to access and generate Tracks.

8.1 Ownership of Tracks.

You agree that all Tracks shall, from the inception of creation, be the sole property of Boomy and its designees throughout the world, free from any claims whatsoever by you or any other third party. Boomy and its designees shall have the exclusive right to copyright such each such Track in its name as the sole owner and author thereof and to secure any and all renewals and extensions thereof throughout the world. Each such Track shall be deemed a "work for hire" owned by Boomy or its designees. If for any reason, any such Track is determined not to be a "work for hire", then all right, title and interest therein and thereto, including all copyrights therein, are hereby deemed irrevocably transferred to Boomy or its designee(s). To the extent that any third party you engaged or otherwise collaborated with in connection with any Track has any right, title or interest in or to any such Track (or any component thereof), you agree to: (a) cause each of your Collaborators to execute any documents or take any other actions as Boomy may request to irrevocably waive such rights and perfect Boomy's ownership interest in and to any Track, (b) at Boomy's request, consent to and join in any action to enforce such rights. In the event you fail to execute any documents or instruments necessary to conclude the foregoing transfer, then you hereby irrevocably grant to Boomy the power to do so on your behalf. Boomy shall use reasonable efforts to provide you with copies of any such documents mentioned in the preceding sentence. You hereby irrevocably and unconditionally waive any and all moral and like rights that you might have in any such Track and in the performances embodied therein and hereby agree not to make any claim against Boomy or any party authorized by Boomy to exploit such Track based on such moral or like rights. Without limiting any of Boomy'as rights in the Tracks, Boomy shall have the universe-wide right, in perpetuity, in its sole discretion, to use, reproduce, distribute, adapt, create derivative works based on, transmit, display and perform (publicly or otherwise), make, sell, offer to sell, import and otherwise exploit any Track (including, without limitation, in albums, singles, records, music videos, and any advertisements, trailers, clips, featurettes, or other promotions in connection therewith), in any and all media now known or hereafter devised, and by any means or methods now known or hereafter devised.

You acknowledge and agree and it is the intent of the parties hereto that neither you nor any of your employees or contractors shall receive any Boomy-sponsored benefits from Boomy either as a consultant or employee. Such benefits include, but are not limited to, paid vacation, sick leave, medical insurance, and 401(k) participation. If you are reclassified by a state or federal agency or court as an employee, Consultant will become a reclassified employee and will receive no benefits except those mandated by state or federal law, even if by the terms of the Boomy's benefit plans in effect at the time of such reclassification you would otherwise be eligible for such benefits.

8.2 Membership Plans and Licensing of Tracks.

Although Boomy owns all Tracks, as detailed in Section 8.1 above, users that are subscribed to certain Membership Plans are permitted to license from Boomy a certain number Tracks, depending on the Membership Plan. In the event you license a Track from us pursuant to a Membership Plan, Boomy will grant you a non-exclusive, worldwide, royalty-free, perpetual, non-transferable and non-sublicensable license to: (i) download such Track for personal, non-commercial purposes; (ii) share such Track on Boomy-approved third-party social media services (for clarity, YouTube, TikTok, Facebook, Instagram, Roblox and Twitch are approved by Boomy), in each case subject to the terms of the applicable third-party platform(s) and Boomy's agreements (if any) with such platform(s), and also subject to Boomy's sole right to claim and monetize the applicable Tracks on such third-party platform(s); and (iii) solely as it pertains to the features and settings made available to you as part of your Membership Plan (which, for the avoidance of doubt, are subject to change from time to time): (a) remix, sample and/or reproduce the Track, with or without modifications, solely for its incorporation into or creation of an audio or audiovisual recording (the "Derivative Work"), and (b) to reproduce, distribute, transmit, publicly perform or display, communicate and make available to the public, and to otherwise use the Track and Derivative Work, in all media and formats whether now known or hereafter created; provided that, unless otherwise provided in the features and settings made available to you as part of your applicable Membership Plan: (A) the foregoing use of the Track and Derivative Work are solely for personal, non-commercial purposes; and (B) Boomy shall have the exclusive right to issue licenses for the following uses of the Track and Derivative Work: (I) synchronization with motion pictures, television productions, video games, advertisements, and other audiovisual works; (II) broadcasts and radio; (III) live streams, metaverse concerts and other similar live performances and events; (IV) all "in-app" sales, and (V) so-called "non-fungible tokens" and other digital collectibles.

For the avoidance of doubt, the foregoing license does not allow you to: (i) use any Track on a stand-alone basis or in isolation, such as sound effects or as loops, (ii) sell, loan, lend, share, give, broadcast, rent, assign or otherwise distribute, transfer, provide or make available to anyone any Tracks except as incorporated into your Derivative Work, (iii) use any Track for the creation of a sound or sample library or as a sound or sample library or part thereof, including for any kind of synthesizer, virtual instrument, sample library, sample-based product or other musical instruments, (iv) sell, loan, lend, share, give, broadcast, rent, assign or otherwise distribute, transfer, provide or make available to anyone any Track or any part of the Track on a stand-alone basis or as repackaged into audio samples, sound libraries or sound effects, except as permitted by Boomy, (v) use any Track to create content that is illegal or is otherwise defamatory, offensive, obscene or promotes the same, or (vi) use the Track in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Boomy reserves the right to revoke its license to you if it discovers that you are using a Track in any of the foregoing ways or as not expressly permitted hereunder.

9 Digital Distribution of Tracks.

Subject to the features and settings made available by Boomy to you as part of the Services, you may be able to submit to Boomy certain of your Tracks for digital distribution. Your eligibility to submit your Tracks s for digital distribution and the terms and conditions applicable to such digital distribution are set forth in, and subject to, the Boomy Distribution Terms.

10 Boomy Generated Materials.

Subject to the terms and condition of this Agreement and to the features and settings made available by Boomy to you as part of the Services, you may use the Services to access and generate cover art and other creative materials (any such cover art and other creative materials generated by your use of the Service, the "Boomy Generated Materials"). Boomy hereby grants to you a limited, non-exclusive license to use the Boomy Generated Materials during the term of this Agreement. You agree that, as between you and Boomy, subject to the license grant set forth in this Section 10, Boomy shall own all right, title and interest in and to the Boomy Generated Materials, including any intellectual property rights therein. To the extent that you, or any of your Collaborators, obtain or otherwise have any right, title or interest in or to any Boomy Generated Materials, you hereby irrevocably assign to Boomy, on your behalf and on behalf of your Collaborators, on a worldwide and perpetual basis, all such right, title and interest in and to such Boomy Generated Materials including any and all intellectual property rights therein.

11 Other Materials.

You may submit or otherwise make available to Boomy certain creative materials in connection with your use of the Service, including, but not limited to your own cover art or release notes ("Other Materials"). You hereby agree that such Other Materials are not confidential and you hereby grant to Boomy, on your behalf and on behalf of any applicable Collaborators, a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party (including any of your Collaborators) to use and otherwise exploit such Other Materials. For the avoidance of doubt, the Other Materials shall exclude any Boomy Generated Materials.

12 License to Feedback.

You agree that Boomy may use any suggestions, ideas, proposals or other materials provided by you, whether related to the Site or Service or otherwise ("Feedback"), and you hereby agree that such Feedback is not confidential. You hereby grant to Boomy, on your behalf and on behalf of any applicable Collaborators, a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party (including any of your Collaborators) to use and otherwise exploit such Feedback.

13 Monitoring.

We may (but have no obligation to) monitor, evaluate, alter or remove Tracks before or after they appear on the Site, or analyze your access to or use of the Site. We may disclose information regarding your access to and use of the Site, and the circumstances surrounding such access and use, to anyone for any reason or purpose.

14 Your Limited Rights.

Subject to your compliance with this Agreement, and solely for so long as you are permitted by Boomy to use the Site or Service, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use.

15 Boomy's Proprietary Rights.

We own the Site and Service, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include "BOOMY" and any associated logos. All trade names, trademarks, service marks and logos on the Site or Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site or Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.

Certain Site and Service functionality may make available access to information, products, services and other materials made available by third parties ("Third Party Materials"), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.

We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Boomy with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site or Service at any time. In addition, the availability of any Third Party Materials through the Site or Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.

Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of use or privacy policies of the providers of such Third Party Materials).

17 Representations and Warranties.

17.1

If you are an individual entering into this Agreement on behalf of an Organization, you hereby represent and warrant that you are authorized to act on behalf of such Organization. If you are an Organization, you hereby represent and warrant that the individual entering into this Agreement on your behalf is authorized to act on your behalf.

17.2

In addition to the other representations and warranties contained herein, you hereby represent and warrant that: (a) you are authorized to act on behalf of any of your Collaborators; and (b) you have and will maintain all permissions, approvals, authorizations, licenses and other rights necessary to grant the rights and licenses granted to Boomy hereunder, including any such permissions, approvals, authorizations, licenses or other rights of any of your Collaborators.

18 Disclaimer of Warranties.

To the fullest extent permitted under applicable law: (a) the Site, the Service, any Tracks and Third Party Materials are made available to you on an "As Is," "Where Is" and "Where Available" basis for your personal, non-commercial use, without any warranties of any kind, whether express, implied or statutory; and (b) Boomy disclaims all warranties with respect to the Site, the Service, any Tracks and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Boomy and its affiliates and their respective directors, officers, employees, affiliates, agents, representatives, licensors and service providers (collectively, the "Affiliated Entities"), and their respective successors and assigns.

While we try to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at legal@boomy.com with a description of such alteration and its location on the Site.

19 Limitation of Liability.

To the fullest extent permitted under applicable law: (a) Boomy will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Boomy will not be liable for damages of any kind resulting from your use of or inability to use the Site, the Service or Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Site, the Service or Third Party Materials is to stop using the Site or Service; and (d) the maximum aggregate liability of Boomy for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of the total amount, if any, paid by you to Boomy to use the Service and an amount equal to twenty U.S. Dollars ($20.00). All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Boomy and the Affiliated Entities, and their respective successors and assigns.

20 Indemnity.

20.1

To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Boomy and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys' fees) (together, "Losses") arising out of or relating to (a) your use of, or activities in connection with, the Site or Service (including any Track, any component thereof or any modifications that you or your Collaborators have made to any such Track); (b) any violation or alleged violation of this Agreement by you; (c) any claims brought or threatened against Boomy or any Affiliated Entity by any of your Collaborators; and (d) any third-party claims brought or threatened against Boomy or any Affiliated Entity related to any act or omission of any of your Collaborators.

20.2

In addition, if you entered into this Agreement on behalf of an Organization, you agree to defend, indemnify and hold harmless Boomy and the Affiliated Entities, and their respective successors and assigns, from and against all Losses arising out of or relating to (a) any claims brought or threatened against Boomy or any Affiliated Entity by such Organization; and (b) any third-party claims brought or threatened against Boomy or any Affiliated Entity related to any act or omission of such Organization.

21 Termination.

This Agreement is effective until terminated. Boomy may terminate or suspend your use of the Site or Service at any time and without prior notice, for any or no reason, including if Boomy believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site and Service will immediately cease, and Boomy may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2–13, and 15–25 shall survive any expiration or termination of this Agreement.

22 Governing Law; Arbitration.

22.1

The terms of this Agreement and any claim or dispute relating to or arising under this Agreement or in connection with your use of the Service are governed by and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, or any rules of private international law, that would lead to the application of any other laws, and regardless of your location.

22.2

Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Boomy, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Boomy and you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.

22.3

If you are an individual who is accessing or using the Site or the Service in your individual capacity, (a) the arbitration will be administered on an individual basis (i.e., not as a class arbitration or class action) by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement (the Consumer Arbitration Rules are available online at the webpage located here); (b) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (c) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (d) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.

If you are an individual who is accessing or using the Site or the Service in your individual capacity, you can opt out of this arbitration provision within thirty (30) days of the date that you first agreed to any version of this Agreement. To opt out, you must send your name, residence address, and email address used for your account or when you access the Site or Services and a clear statement that you want to opt out of this arbitration provision, and you must send them to Boomy Corporation, 1748 Shattuck Ave, Unit #306, Berkeley, CA 94709.

22.4

If you are (a) an Organization; (b) an individual accessing or using the Site or Service on behalf of, or for the benefit of, an Organization; or (c) if you are an individual using the Site or Service in a business capacity, including if you submit your Tracks to Boomy for distribution pursuant to the Boomy Distribution Terms, the arbitration will be administered on an individual basis (i.e., not as a class arbitration or class action) by the American Arbitration Association under its Commercial Arbitration Rules, as amended by this Agreement (the Commercial Arbitration Rules are available online at the webpage located here), and the arbitrator will conduct hearings, if any, in-person in the Borough of Manhattan in New York, NY.

22.5

The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. You agree that the federal and state courts located in New York County in the State of New York, U.S.A., will have such jurisdiction, and you hereby waive any jurisdictional, venue or inconvenient forum objections to such courts. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.

23 Information or Complaints.

If you have a question or complaint regarding the Site, you may contact us at help@boomy.com. Please note that such communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (800) 952-5210.

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send a written notice to Boomy by mail or email requesting that Boomy remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Boomy a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.

See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Boomy's Copyright Manager as follows: By mail to Boomy Corporation, 1748 Shattuck Ave, Unit #306, Berkeley, CA 94709 USA; or by e-mail to legal@boomy.com. Boomy's Copyright Manager's phone number is 510-730-3746.

We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.

25 Miscellaneous.

Neither this Agreement nor your use of the Site and/or Service shall be construed to, create or otherwise result in any partnership, joint venture, employer-employee, agency, franchisor-franchisee, or fiduciary relationship between Boomy and you or any of your Collaborators. Neither you nor any your Collaborators are an employee, agent, or partner of Boomy. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term "including" or variations thereof in this Agreement shall be construed as if followed by the phrase "without limitation." This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Boomy relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Boomy relating to such subject matter. This Agreement is for the benefit of, and will be enforceable by, you and Boomy only. This Agreement is not intended to confer any right or benefit on any third party, including any of your Collaborators. No action may be commenced or prosecuted against a party hereto by any third party claiming as a third-party beneficiary of this Agreement. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Boomy will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.

© 2018-2023 BOOMY CORPORATION, unless otherwise noted. All rights reserved.

BOOMY DISTRIBUTION Terms

These Boomy Distribution Terms (the "Distribution Terms") are between you and Boomy Corporation ("Boomy" or "we" or "us") and apply to your use of Boomy's distribution service (the "Distribution Service"). Pursuant to the Distribution Service, registered users of the Site who have agreed to these Distribution Terms may submit their Tracks, whether as an album or as a single, for distribution by Boomy and may be eligible to receive a revenue share hereunder. The number of Tracks you may submit via the Distribution Service and your eligibility to receive a revenue share hereunder are governed by these Distribution Terms and your Boomy subscription plan. Information regarding the different plan options made available by Boomy can be found at the pages located at https://boomy.com/about.

In addition to these Distribution Terms, the Boomy Terms of Use https://boomy.com/terms (the "Agreement") apply to your use of the Distribution Service and are hereby incorporated by reference into these Distribution Terms. By clicking "I Agree" you consent to these Distribution Terms. Your use of the Distribution Service (as described herein) also constitutes your consent to these Distribution Terms. Any capitalized term used in these Distribution Terms that is not defined herein shall have the meaning given to such term in the Agreement.

By using the Distribution Service, you affirm that you are a registered user of the Site (as defined in the Agreement) and (1) if you are an individual who is accessing or using the Distribution Service in your individual capacity, that you are at least eighteen (18) years of age, or, if higher, the legal age of majority in your jurisdiction of residence or, (2) if you are not of legal age in your jurisdiction but are older than twelve (12), that your parent or legal guardian has reviewed and consented to you entering into these Distribution Terms, and has so confirmed by signing our Parental/Guardian Consent Form. The Distribution Service is not available to individuals who are under the age of thirteen (13). Individuals under thirteen (13) years of age are not permitted to access or use the Distribution Service.

if you are an individual accessing or using the Distribution Service on behalf of, or for the benefit of, any corporation, partnership, group, organization or any other entity with which you are associated (an "Organization"), you agree to these Distribution Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Distribution Terms. References to "you" and "your" in these Distribution Terms will refer to both the individual using the Distribution Service and to any such Organization.

Arbitration Notice: You agree that disputes between you and Boomy arising out of or related to the Distribution Service, your use thereof, or these Distribution Terms will be resolved by arbitration on an individual basis, rather than jury trials or any other court proceedings, or class actions of any kind, in accordance with the American Arbitration Association Commercial Arbitration Rules (available here), as set out in Section 12 of these Distribution Terms.

1. Distribution Service.

Pursuant to the Distribution Service, Boomy may digitally distribute the Tracks submitted by you (including any component thereof), whether as an album or a single (each such submitted Track, a "Release") for the licensing, sale, public performance, electronic transmission, or other distribution to any Internet sites, online services and other entities, platforms and channels engaged in the distribution, performance, transmission, or sale of, or otherwise making available or exploiting, music and/or music-related content ("Music Services"), in any form or media, whether now known or existing in the future, including, but not limited to, permanent digital downloads, limited or temporary digital downloads, ringtones, ring-back tones, CD-ROMs, vinyl records, interactive streaming, non-interactive streaming, and cloud services, whether or not a direct or indirect charge is made to receive the transmission and whether or not such transmission results in a specifically identifiable reproduction of any Release by or for any transmission recipient ("Distribution").

You acknowledge that, in addition to these Distribution Terms, the Distribution of your Release(s) by any particular Music Service is subject to any applicable terms and conditions of such Music Service and any agreement that Boomy may have entered into, or may enter into, with such Music Service (as such agreement may be amended from time to time by the Music Service and Boomy).

2. Boomy-Owned Materials.

Pursuant to the Agreement, as between you and Boomy, Boomy is and shall be the sole owner of all right, title, and interest in and to any Release(s) and Boomy Generated Materials (as defined in the Agreement) (Release(s) and the Boomy Generated Materials together, the "Boomy-Owned Materials"). Boomy may use or otherwise exploit the Boomy-Owned Materials for any purpose, including, without limitation, in connection with the Distribution of Release(s).

3. Authorization.

Without limiting the rights granted by you to Boomy pursuant to the Agreement, including the rights granted by you on behalf of any of your Collaborators, such rights include the right for Boomy and its designees to: (a) Distribute the Other Materials associated with your Release(s), including by reproducing, converting, and creating derivative works of your Other Materials (as defined in the Agreement,) and reproducing, promoting, advertising, marketing, sublicensing, selling, publicly performing, displaying, hosting, distributing, delivering, transmitting, and otherwise exploiting and using your Other Materials for Distribution of your Release(s); (b) display any and all lyrics associated with a musical composition embodied in any Release; (c) use any name, voice, likeness, images, artwork, logo, trademark, service mark or other biographical materials and other rights of publicity that you provide to us in connection with the Distribution of your Releases; (d) collect all income generated from the Distribution of your Releases; and (e) sublicense all rights granted in this Section 3 to Music Services or other licensees.

4. Payment.

4.1.

Subject to the terms of these Distribution Terms, Boomy will pay to you up to eighty percent (80%) of Boomy's Net Revenue (the "Revenue Share"). Boomy's Net Revenue means the gross amounts actually received by Boomy and actually generated from the Distribution of your Release(s) less any fees associated with such Distribution as determined by Boomy in its sole discretion, including fees associated with content review and processing fees imposed by third-party payment processors or aggregators. In addition, to the extent you owe any other amounts to Boomy, whether pursuant to these Distribution Terms, the Agreement, or otherwise, Boomy shall have the right to offset any Revenue Share payable to you by such amounts.

4.2.

You may request an increase to the percentage of Boomy's Net Revenue that you receive as your Revenue Share in special circumstances, including, but not limited to, cases where you substantially donate your Revenue Share to a charity, cases where you plan to commit a substantial monetary investment to promotion of a specific Release, or in order to comply with prior agreements with Boomy or another third party. Boomy shall have no obligation to respond to any such request. If you do not receive a response to your request from Boomy (whether affirmative or negative) within thirty (30) days of receipt by Boomy, your request shall be considered rejected.

4.3.

To the extent that you have any revenue-sharing arrangement with any of your Collaborators or any other third party, you acknowledge that such arrangement is an independent, private arrangement, and that Boomy has no obligation to pay any Revenue Share (or portion thereof) or other compensation to any Collaborator or third party in connection with your Releases.

4.4.

If you are entitled to a Revenue Share hereunder, such Revenue Share will be posted in U.S. Dollars to your Boomy account within sixty (60) days after the end of the calendar month in which Boomy actually received such amounts. In certain instances, Boomy may receive amounts in connection with the Distribution of your Releases in fractional amounts of one (1) cent. If possible, during each month, Boomy will round these fractional amounts to accumulate a minimum threshold payout amount of one (1) cent, and Boomy will allocate this amount to you as part of your Revenue Share. You understand that your Revenue Share will not be posted to your Boomy account until Boomy has actually received such amounts.

4.5.

If you have accrued an eligible payout amount of at least five U.S. Dollars ($5), you may request to withdraw your Revenue Share from your Boomy account and, provided that your Boomy account is in good standing, such Revenue Share will be posted to your identified third-party account. You may also be able to use your Revenue Share to pay for your Boomy subscription plan and/or other services that Boomy may offer. More information regarding your Revenue Share, including how you can request to withdraw your Revenue Share and the payout methods that Boomy supports can be found on our website at https://boomy.com/about.

4.6.

Boomy shall not have any payment obligations to you other than any Revenue Share payable to you hereunder. In no event will Boomy be liable for any taxes that are based upon your Revenue Share.

4.7.

You agree that Boomy shall have no payment obligations to you, and no Revenue Share shall accrue, in connection with: (a) any promotional or marketing uses of your Release(s); or (b) any use of clips of your Release(s), provided that such clips do not exceed thirty (30) seconds in length.

4.8.

You agree not to authorize or encourage, directly or indirectly, any third party to use any deceptive, fraudulent, or other invalid means or method, including any manual or automated means, bots, robots, scrapers, data mining tools, automated scripts or the like, to access your Release(s) from any Music Service to generate plays, public performances, downloads, purchases, streams or other uses of, or interactions with, your Release(s). Without limiting Boomy's other remedies under these Distribution Terms, the Agreement, or applicable law, Boomy reserves the right to investigate any activity that may violate these Distribution Terms and may, at its discretion, provide the results of the investigation to the appropriate authorities. Boomy shall have no payment obligations to you in connection with any Revenue Share generated from, or in connection with, any activity that may violate these Distribution Terms or that any Music Service may believe to be improper, in each case, as determined by Boomy in its sole discretion. If any such Revenue Share has been paid to you prior to Boomy identifying a violation of these Distribution Terms, Boomy may, in its sole discretion, offset such amounts against any future Revenue Share payments to you, receive a refund of such amounts from you, and/or terminate these Distribution Terms.

5. Representations and Warranties.

In addition to the other representations and warranties contained herein and in the Agreement, you hereby represent and warrant that: (a) you are authorized to act on behalf of any of your Collaborators; and (b) you have and will maintain all permissions, approvals, authorizations, licenses and other rights necessary to grant the rights and licenses granted to Boomy hereunder, including any such permissions, approvals, authorizations, licenses or other rights of any of your Collaborators.

If you are an individual entering into these Distribution Terms on behalf of an Organization, you hereby represent and warrant that you are authorized to act on behalf of such Organization. If you are an Organization, you hereby represent and warrant that the individual entering into this Agreement on your behalf is authorized to act on your behalf.

6. Termination.

These Distribution Terms are effective until terminated. Boomy may terminate or suspend your use of the Distribution Service at any time and without prior notice, for any or no reason, including if Boomy believes that you have violated or acted inconsistently with the letter or spirit of these Distribution Terms or the Agreement. You may terminate these Distribution Terms upon thirty (30) days' written notice to Boomy or by terminating your Boomy account. Following any termination of these Distribution Terms, (a) Boomy may, in its discretion, discontinue the Distribution of your Releases and/or notify all applicable Music Services to discontinue distribution and sale of the applicable Releases; (b) you will not be entitled to any amounts accumulated after the date of termination in connection with your Release(s); and (c) you will not be entitled to reimbursement of any pre-paid fees with respect to any of your Release(s).

7. Disclaimer of Warranties.

To the fullest extent permitted under applicable law: (a) the Distribution Service is made available to you on an "As Is," "Where Is" and "Where Available" basis for your personal use without any warranties of any kind, whether express, implied or statutory; and (b) Boomy disclaims all warranties with respect to the Distribution Service, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in these Distribution Terms) are made for the benefit of both Boomy and its affiliates and their respective directors, officers, employees, affiliates, agents, representatives, licensors and service providers (collectively, the "Affiliated Entities"), and their respective successors and assigns.

You understand and agree that Boomy and the Music Services have the right, but not the obligation, to market, promote or advertise your Release(s). You understand that each Music Service has total discretion as to whether it will offer or otherwise make available your Release(s) and Boomy makes no guarantees with respect to the scope of each Music Service's distribution of your Release(s), minimum sales, downloads, streams, plays, Revenue Share, or other metric of your Release(s), payments to you under these Distribution Terms or whether a Music Service will actually offer or make available your Release(s).

8. Limitation of Liability.

To the fullest extent permitted under applicable law: (a) Boomy will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Boomy will not be liable for damages of any kind resulting from the Distribution Service, including from any Virus that may be transmitted in connection therewith, or any Music Service's distribution, sale or making available of your Release(s); (c) your sole and exclusive remedy for dissatisfaction with the Distribution Service is to stop using the Distribution Service; and (d) the maximum aggregate liability of Boomy for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of the total amount of Revenue Share, if any, paid by Boomy to You pursuant to these Distribution Terms in the twelve (12) month period immediately preceding the first claim and one hundred U.S. Dollars ($100.00). All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Boomy and the Affiliated Entities, and their respective successors and assigns.

9. Indemnity.

To the fullest extent permitted under applicable law, in addition to your indemnification obligations set out in the Agreement, you agree to defend, indemnify and hold harmless Boomy and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys' fees) (together, "Losses") arising out of or relating to (a) your use of, or activities in connection with, the Distribution Service (including any Release(s), Other Materials, any component thereof or any modifications that you or your Collaborators have made to any such Release(s) or Other Materials); (b) any violation or alleged violation of these Distribution Terms by you; (c) any claims brought or threatened against Boomy or any Affiliated Entity by any of your Collaborators; and (d) any third-party claims brought or threatened against Boomy or any Affiliated Entity related to any act or omission of any of your Collaborators.

In addition, if you entered into these Distribution Terms on behalf of an Organization, you agree to defend, indemnify and hold harmless Boomy and the Affiliated Entities, and their respective successors and assigns, from and against all Losses arising out of or relating to (i) any claims brought or threatened against Boomy or any Affiliated Entity by such Organization; and (ii) any third-party claims brought or threatened against Boomy or any Affiliated Entity related to any act or omission of such Organization.

10. Changes.

We may change these Distribution Terms from time to time by notifying you of such changes by any reasonable means, including by posting revised Distribution Terms through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Distribution Terms incorporating such changes, or otherwise notified you of such changes.

Your use of the Distribution Service following any changes to these Distribution Terms will constitute your acceptance of such changes. The "Last Updated" legend above indicates when these Distribution Terms was last changed. We may, at any time and without liability, modify or discontinue all or part of the Distribution Service (including access to the Distribution Service via any third-party links); charge, modify or waive any fees required to use the Distribution Service; or offer opportunities to some or all users.

11. Survival.

Sections 1, 2, 3, 4.3, 4.6, 4.7, 4.8, 5, 6, 7, 8, 9, 12 and 13 shall survive any termination of these Distribution Terms.

12. Governing Law; Arbitration.

These Distribution Terms and any claim or dispute relating to or arising under these Distribution Terms or in connection with your use of the Distribution Service are governed by and shall be construed in accordance with the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, or any rules of private international law, that would lead to the application of any other laws, and regardless of your location. Any disputes arising out of or related to these Distribution Terms or the Distribution Service, including a dispute involving the alleged breach, termination or validity of these Distribution Terms, will be resolved through binding arbitration before a single neutral arbitrator instead of in a court by a judge or jury, and the parties agree that they are each waiving any right to trial by a jury. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules, as amended by these Distribution Terms (the Commercial Arbitration Rules are available online at the webpage located here). Any in-person hearings or appearances will be held in the Borough of Manhattan in New York, New York. The arbitrator's decision will follow the terms of these Distribution Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Distribution Terms, but only to the extent necessary to provide relief warranted by the individual claim(s) before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof (the parties acknowledge that any state or federal court located in the Borough of Manhattan in New York, New York shall have jurisdiction thereof).

13. Miscellaneous.

13.1 Notices.

Notices hereunder will be given in writing and sent via email (a) to Boomy at legal@boomy.com; and (b) to you at the email address associated with your Boomy account.

13.2 Assignment.

You may not assign, transfer, delegate, charge or sub-contract any or all of your rights or obligations under these Distribution Terms without the prior consent of Boomy and any purported attempt to do so in violation of this Section 13.2 will be null and void. Boomy may assign, transfer, delegate, charge or sub-contract, whether voluntarily or involuntarily, by operation of law or otherwise, these Distribution Terms and any of its rights or obligations hereunder.

13.3 Independent Contractors.

NEITHER THESE DISTRIBUTION TERMS NOR YOUR USE OF THE DISTRIBUTION SERVICE SHALL BE CONSTRUED TO CREATE OR RESULT IN A PARTNERSHIP, JOINT VENTURE, AGENCY, EMPLOYER-EMPLOYEE OR FIDUCIARY RELATIONSHIP BETWEEN YOU AND BOOMY.

13.4 Third-Party Beneficiaries.

These Distribution Terms do not confer any third-party beneficiary rights.

13.5 Waiver.

No waiver by either party of any breach of these Distribution Terms will be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision hereof.

13.6 Severability.

If any provision of these Distribution Terms is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Distribution Terms and will not affect the validity or enforceability of any remaining provisions.