Terms of Service
Last Updated: December 12, 2022
Platform. BOOMN, Inc. (DBA BOOMN.io, “BOOMN,” “we,” “us,” “our” or “Company”) provides its services (described below) to you (“you” or “User“) through its website located at www.boomn.io, www.proofofsound.org, and/or www.boomblock.io (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”).
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST BOOMN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
These Terms of Service apply to (a) the website(s) located at the URL www.boomn.io, www.proofofsound.org, and/or www.boomblock.io and those other websites owned and/or controlled by BOOMN, Inc. (collectively, the “Company Websites”), (b) those digital properties (including, without limitation, apps) that provide registered users access to the Company Websites (including the Marketplace) (the “Company Digital Properties“), (c) any successor Company Websites or Company Digital Properties and all other web pages interconnected with, and/or forming a part of, such Company Websites and Company Digital Properties, including, without limitation, the home page and all other sub-pages under the same top-level domain name, and (d) all content and all services available thereon, including, without limitation, the Marketplace (collectively, the “Site”).
Acceptance of Terms. These Terms, together with any documents they expressly incorporate by reference, govern your access to and use of the Platform, including any content, functionality, and services offered on the Platform and constitute a legally binding agreement between you and BOOMN. By using the Platform, you accept and agree to be bound and abide by these Terms and all of the terms incorporated herein by reference. By agreeing to these Terms, you represent and warrant that you (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (2) are not listed on any U.S. Government list of prohibited or restricted parties; and (3) are at least 18 years of age. If you do not satisfy these conditions then you may not use the Platform. If we learn or have reason to suspect that you do not satisfy these conditions, we will have to close your account. If you do not agree to these Terms, you must not access or use the Platform. By accessing or using the Platform, connecting your Digital Wallet or viewing, accessing, transmitting, transacting, uploading or downloading any information or content from the Platform, you represent and warrant that you (1) satisfy the eligibility conditions set out above, (2) have read and understood the Terms, and (3) will comply with the Terms.
Modifications of the Terms. We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. If the change is significant then we will also notify you, either through the Platform user interface, in an email notification (to the extent we have such information) or through other reasonable means, as we may determine. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Platform will be effective immediately. Your continued use of the Platform and after the date any such changes become effective constitutes your acceptance of the new Terms.
2. What is BOOMN?
The BOOMN Platform. BOOMN operates a platform to connect artists, creators and audio rightsholders (“Artists”) with Users. The Platform provides tools and services to Artists to mint and sell to Users, non-fungible Polygon-based tokens (“BOOMN NFTs”) that relate to the Artist’s select sound recordings (“Audio Content”) and associated files and/or artwork. Artists may use the Platform to create collections of BOOMN NFTs and to enable Users to interact with the Audio Content associated with such BOOMN NFTs on-demand. BOOMN is an online technical intermediary; it is not a party to any agreement between the buyer and seller of BOOMN NFTs. BOOMN is freely accessible to Users but some features of the Platform are only available to Artists.
Artists. If you are an Artist wishing to use the Platform to mint and sell BOOMN NFTs, the additional terms and conditions set out in the Appendix to these Terms will apply (the “Additional Artist Terms”). The Additional Artist Terms expressly form part of these Terms.
Smart-Contract Enabled. BOOMN NFTs are represented in smart contracts on the Polygon blockchain that provides an immutable ledger of all transactions that occur on and off the Platform (“Smart Contracts”). This means that BOOMN NFTs are outside of the control of any one party, including BOOMN, and is subject to many risks and uncertainties. We neither own nor control Metamask, Coinbase, OpenSea, the Polygon network, your browser, or any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties. You understand that your Polygon public address will be made publicly visible whenever you engage in a transaction on the Platform.
Non-custodial. BOOMN does not buy, sell, or ever take custody or possession of any BOOMN NFTs. The Platform facilitates User purchase and collection of BOOMN NFTs, but BOOMN is not custodian of any BOOMN NFT. The User understands and acknowledges that the Smart Contracts do not give BOOMN custody, possession, or control of any BOOMN NFTs or cryptocurrency at any time for the purpose of facilitating transactions on the Platform. You acknowledge that BOOMN is a non-custodial service provider and has designed the Platform to be directly accessible by the Users without any involvement or actions taken by BOOMN.
3. Your BOOMN Account
Account creation. Anyone can browse the Platform and play Audio Content without signing into the Platform, but you may be required to sign into the Platform and create an account with BOOMN in order to take advantage of some of the Platform features, including purchasing BOOMN NFTs, uploading audio, publishing drops or register as an Artist. To sign into the Platform, you will need to connect your BOOMN app or compatible “digital wallet” supported by Magic Link (“Digital Wallet”). More information about where to find and how to set up an Digital Wallet may be found. When you connect your Digital Wallet to the Platform, we automatically link your account to you. Your account is and will always be irrevocably linked with your Digital Wallet address. You acknowledge and accept that your public Digital Wallet address will be publicly displayed on the Platform when you interact with it. Once you have successfully signed in with your Digital Wallet, you may edit your account information, including creating a username using the account settings on the Platform. From time to time, we may require you, in our sole discretion, to provide additional information and/or documents. If you do not provide complete and accurate information and/or documents in response to such a request, we may refuse to provide you with the certain features or services.
Limited license to use the Platform. Subject to your strict compliance with these Terms at all times while using the Platform, BOOMN grants to you a limited, personal, non-exclusive, revocable and non-transferable right and license to access and use the Platform to (i) view Artwork associated with Audio Content and BOOMN NFTs, (ii) listen to Audio Content (solely as streamed from the Platform), and (iii) buy and collect BOOMN NFTs offered by Artists.
Purchases. Purchases of Artists’ BOOMN NFTs on the Platform shall be made in ETH through your compatible Digital Wallet. When purchasing a BOOMN NFT on the Platform, you agree to pay the price detailed on the transaction page of the Platform and in accordance with the procedures of the Platform. By buying a BOOMN NFT on the Platform or any other platform, you further agree to pay all applicable fees, including, but not limited to, any transaction fees and gas fees, as may be applicable. Subject to the successful purchase of the BOOMN NFT on the Platform, BOOMN agrees, as an accommodation to the Artist, to deliver the BOOMN NFT to your Digital Wallet.
Rights with BOOMN NFTs. You acknowledge and accept that when you purchase BOOMN NFTs on the Platform, you do not obtain any intellectual property rights or licenses of any nature in and to the Audio Content or the Artwork associated with them. Purchasing a BOOMN NFT publicly associates your Digital Wallet public address (together with any corresponding user name you have created on the Platform) with the BOOMN NFT. No other rights or benefits are granted to purchasers by Artists or by BOOMN. Notwithstanding the foregoing, from time to time, BOOMN may make available to BOOMN NFT holders, certain exclusive additional features or functionality on the Platform, such as the right to make a public comment on the BOOMN NFT page, provided that such features or functionality are subject to change and are only available for the duration of your ownership of the applicable BOOMN NFT and for so long as the Audio Content associated with the BOOMN NFT is available on the Platform.
Restrictions. Use of the Platform is subject to each of the following conditions:
- Access: you understand and agree that access to your BOOMN account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your BOOMN account to any person without our prior written permission.
- Purpose. you confirm that you are not purchasing any BOOMN NFT with the intent or expectation of profits from any appreciation in value.
- Security: you understand and agree that you are solely responsible for maintaining the security of your account and control over any usernames, or any other codes, seed phrases and other security information that you use to access the Platform. Any unauthorized access to your account by third parties could result in the loss or theft of your BOOMN NFTs. You understand and agree that you will not hold us responsible for managing and maintaining the security of your account or your Digital Wallet. You further understand and agree that we are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your account. You are responsible for monitoring your account. If you notice any unauthorized or suspicious activity in your account, please notify us immediately.
- Unlawful Activity: you agree not to engage, or assist, in any activity that violates any law, statute, ordinance, regulation, or sanctions program, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or that involves proceeds of any unlawful activity.
- Abusive Activity: you agree not to engage in any activity that poses a threat to BOOMN or the Platform, for example by distributing a virus or other harmful code, or through unauthorized access to the Platform or other users’ accounts.
- Inappropriate Behavior: you agree not to interfere with other users’ access to or use of the Platform.
- Communication: you agree not to communicate with other Users for purposes of: (1) sending unsolicited advertising or promotions, requests for donations, or spam; (2) harassing or abusing other users; (3) interfering with transactions of other users. You agree not to use data collected from the Platform to contact individuals, companies, or other persons or entities outside the Platform for any purpose, including but not limited to marketing activity.
- Fraud: you agree not to engage in any activity which operates to defraud BOOMN, others users, or any other person; or to provide any false, inaccurate, or misleading information to BOOMN.
- Gambling: you agree not to utilize the Services to engage in any lottery, bidding fee auctions, contests, sweepstakes, or other games of chance.
- Taxes: you agree that you are solely responsible for determining what, if any, taxes apply to your Platform transactions. Neither BOOMN nor any other party is responsible for determining the taxes that apply to your BOOMN transactions.
- Intellectual Property Infringement: you agree not to (1) engage in transactions involving items or rights that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law; (2) use our content without express written consent from BOOMN; or (3) engage in any action that implies an untrue endorsement or affiliation with BOOMN.
- Additional Prohibitions: you agree not to: (1) distribute, publish, broadcast, reproduce, copy, retransmit, or publicly display any BOOMN Content (as defined below); (2) modify or create derivative works from the Platform or BOOMN Content, or any portion thereof; (3) use any data mining, robots, or similar data gathering or extraction methods on the Platform or BOOMN Content; (4) download any portion of the Platform or BOOMN Content, other than for purposes of page caching, except as expressly permitted by us.
- Audio Content: you agree not to: (1) download, scrape, reproduce or copy all or part of the Audio Content or associated Artwork; or (2) access or seek to access the Audio Content or associated Artwork in a manner not expressly permitted by these Terms and the functionality of the Platform.
If you are unsure whether a contemplated use would violate these Terms, please contact us at email@example.com.
Account suspension. You agree that BOOMN has the right to immediately suspend your account, pause or cancel your access to the Platform, or close your account if we suspect, in our sole discretion, that (1) your account is being used for money laundering or any illegal activity; (2) you have concealed or provided false identification information or other details; (3) you have engaged in fraudulent activity; or (4) you have violated these Terms.
BOOMN Content. Unless otherwise indicated in writing by us, the Platform, all content, and all other materials contained therein, including, without limitation, the BOOMN logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, “BOOMN Content”) are the property of BOOMN or our affiliates, licensors, or users, as applicable. The BOOMN logo and any BOOMN product or service names, logos, or slogans that may appear on the Platform or elsewhere are trademarks of BOOMN or our affiliates, and may not be copied, imitated or used, in whole or in part, without our prior written permission.
Use of BOOMN Content. You may not use any BOOMN Content to link to the Platform without our express written permission. You may not use framing techniques to enclose any BOOMN Content without our express written consent. In addition, the look and feel of the Platform and BOOMN Content, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of BOOMN and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
5. Reporting Infringements
Apart from the BOOMN Content, all other trademarks, product names, logos, and copyright material on the Platform are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable rights holder. Without limiting the foregoing, if you find any content on the Platform that you believe infringes your copyright, please let us by contacting BOOMN at firstname.lastname@example.org.
If you prefer to send us your own written notice, please be sure to include the following information:
- a statement stating that you have identified content on BOOMN that infringes your copyright or the copyright of a third party on whose behalf you are authorized to act;
- a description of the author’s work(s) that you claim have been infringed;
- a description of the content that you claim is infringing and the BOOMN URLs where such content can be found;
- your full name, address and phone number, a valid email address at which you can be reached and your BOOMN username if you have one;
- a statement that you have a good faith belief that use of the material relied upon is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information you have provided is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- In addition, if you would like your communication to be considered a citation under the United States Digital Millennium Copyright Act, 17 USC §512(c), please also include the following:
- with respect to your statement that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, confirmation that such statement is made under penalty of misrepresentation; and
- your electronic or autograph signature (which can be a scanned copy).
- Your communication must be sent to us by email to at email@example.com/or by post to the following address: 601 Brickell Key Dr. Suite 700, Miami, FL 33131
If you would like your communication to be considered a citation under the United States Digital Millennium Copyright Act, 17 USC §512(c), your communication must be sent to BOOMN’s designated copyright agent by email to firstname.lastname@example.org and/or by mail to the following address: 600
The process referred to above applies only to copyright. If you find content that you believe violates your trademark rights, please let us know by email at email@example.com In all other cases, if you find content that infringes or violates any of your other rights, that you believe to be defamatory, pornographic, obscene, racist or otherwise responsible for widespread offense, or that constitutes forgery, abuse, spam or otherwise violates these Terms or applicable laws, please report the same to us by email to firstname.lastname@example.org.
BOOMN’s policy is to suspend or terminate the account of repeat infringers. BOOMN’s response may depend on relevant aggravating or mitigating circumstances, but generally we will terminate an account if it is the subject of three valid infringement notices.
No monitoring. You hereby acknowledge and agree that BOOMN does not review content created or uploaded by Artists or its users, and neither BOOMN nor its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and partners have any obligation, and may, but do not undertake or undertake any duty to do so, monitor the Platform for content that is inappropriate, infringes or may infringe third party rights or has been uploaded in violation of these Terms or applicable law.
You acknowledge the collection, use, and disclosure of your personal information in accordance with BOOMN’s , which is incorporated into this Terms by reference.
Please note the following risks in accessing or using BOOMN: The price and liquidity of blockchain assets, including BOOMN NFTs, are extremely volatile and may be subject to large fluctuations; Fluctuations in the price of other digital assets could materially and adversely affect BOOMN NFTs, which may also be subject to significant price volatility; Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of BOOMN NFTs; BOOMN NFTs are not legal tender and are not backed by the government; Transactions in BOOMN NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable; Some transactions in BOOMN NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction; The value of BOOMN NFTs may be derived from the continued willingness of market participants to exchange digital assets for BOOMN NFTs, which may result in the potential for permanent and total loss of value of a particular BOOMN NFT should the market for that BOOMN NFT disappear; The nature of a BOOMN NFT may lead to an increased risk of fraud or cyber-attack, and may mean that technological difficulties experienced by the platform storing the BOOMN NFT may prevent the access to or use of your digital assets; Changes to Third Party Sites (discussed in the “Third Parties” section below) may create a risk that your access to and use of the Platform will suffer.
You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that BOOMN does not give advice or recommendations regarding BOOMN NFTs, including the suitability and appropriateness of, and investment strategies for, BOOMN NFTs. You agree and understand that you access and use the Platform at your own risk; however, this brief statement does not disclose all of the risks associated with BOOMN NFTs and other digital assets. You agree and understand that BOOMN will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using BOOMN NFTs, however caused.
8. Third Parties Sites
BOOMN provides links to these Third-Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites, or their products or services. You use all links to and in Third Party Sites at your own risk. When you leave our Platform, our Terms and policies no longer govern. We may, but are not obligated to, warn you that you are leaving our Platform.
Without limiting the foregoing, currently Users can only purchase the BOOMN NFTs on the Platform during the initial mint and primary sale. Once a User has purchased a BOOMN NFT and wishes to sell, transfer or otherwise deal with it, it must do so outside of the Platform, on a third party marketplace or Digital Wallet. BOOMN has no control over and takes no responsibility in respect of transfers or secondary sales of BOOMN NFTs.
If BOOMN considers it reasonably necessary to mitigate risk of infringement, or to avoid incurring or sustaining any reputational, legal or financial liability, BOOMN may take any action it deems necessary or desirable in respect of the BOOMN NFTs, including, but not limited to, ceasing the sale or issuance of the BOOMN NFTs, removing or procuring the removal of the BOOMN NFTs from listings on the Platform and/or other platforms and channels, (to the extent practicable) removing, taking down and withdrawing the Audio Content and associated Artwork, and/or scrambling, obfuscating and/or unpinning the links to the Audio Content and Artwork associated with the BOOMN NFT.
Without limiting the foregoing, you acknowledge and accept that from time to time Artists may unilaterally require BOOMN to remove Audio Content associated with BOOMN NFTs they have made available on the Platform. In these circumstances, you will no longer be able to access your BOOMN NFT or the Audio Content through the Platform. The BOOMN NFT will nevertheless remain on the Polygon blockchain and the associated Audio Content may continue to be accessible or available through third party markets, platforms and services.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY BOOMN, THE PLATFORM, CONTENT CONTAINED THEREIN, AND BOOMN NFTs LISTED THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. BOOMN (AND ITS SUPPLIERS) MAKES NO WARRANTY THAT THE PLATFORM WILL (1) MEET YOUR REQUIREMENTS; (2) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (3) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE PLATFORM. BOOMN DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE BOOMN ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE PLATFORM AND CONTENT SAFE, BOOMN CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, CONTENT, ANY BOOMN NFT LISTED ON OUR PLATFORM OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, USE OR SALE OF THE BOOMN NFTS AND/OR ANY USE OF AUDIO CONTENT OR ARTWORK INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (1) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (2) SERVER FAILURE OR DATA LOSS; (3) CORRUPTED WALLET FILES; (4) UNAUTHORIZED ACCESS TO APPLICATIONS OR DIGITAL WALLETS; (5) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, BOOMN NFTS OR AUDIO CONTENT.
BOOMN NFTs ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE POLYGON NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE POLYGON PLATFORM. WE DO NOT GUARANTEE THAT BOOMN OR ANY BOOMN PARTY CAN EFFECT THE TRANSFER OF ANY BOOMN NFT.
BOOMN IS NOT RESPONSIBLE FOR SUSTAINED LOSSES DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS, OR ANY OTHER FEATURES OF BOOMN NFTS. BOOMN IS NOT RESPONSIBLE FOR SUSTAINED LOSSES DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING BOOMN NFTS INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BOOMN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE PLATFORM, THE SERVICES, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF BOOMN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE PLATFORM, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
BOOMN and its subsidiaries, affiliates, successors, assignees, employees, agents, directors, officers and partners exclude, to the fullest extent permitted by law, any and all liability that may arise from any Audio Content and Artwork uploaded to the Platform by Artists, including but not limited to, any claims for infringement of intellectual property rights, privacy rights or publicity rights, any claims relating to the publication of abusive, defamatory, pornographic or obscene material, or any claims relating to the completeness, accuracy, timeliness or reliability of any information provided by users of the Platform.
You hereby acknowledge and agree that BOOMN: (i) stores content and other information in accordance with the guidelines, requests and authorization of its users, (ii) merely acts as a passive channel and/or host for uploading, storing and distribution of such content, and (iii) does not play any active role in and does not provide any assistance in the presentation or use of the content. Artists are solely responsible for all Audio Content and Artwork that they upload, post or distribute to, on or through the Platform and, to the extent permitted by law, BOOMN excludes all liability with respect to all Audio Content, Artwork and activities of its users related to them
If you have a dispute with one or more users or Artists, you release BOOMN (and our affiliates and subsidiaries, and BOOMN’s and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Nothing in these Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless BOOMN, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “BOOMN Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Platform, BOOMN Content, Audio Content, Artwork or BOOMN NFTs, (b) your violation of these Terms, and (c) your violation of the rights of a third party, including another user. You agree to promptly notify BOOMN of any third-party Claims and cooperate with the BOOMN Parties in defending such Claims. You further agree that the BOOMN Parties shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND BOOMN.
13. Governing Law
These Terms your rights and obligations, and all actions contemplated by, arising out of or related to these Terms shall be governed by the laws of the State of Florida as if these Terms are a contract wholly entered into and wholly performed within the State of Florida. YOU UNDERSTAND AND AGREE THAT YOUR USE OF BOOMN AS CONTEMPLATED BY THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF FLORIDA AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS. Save as otherwise provided at Section 14, any claims in connection with the Terms or otherwise related to the Platform shall be solely brought in the courts of the State of Florida.
14. Arbitration Agreement
Please read the following agreement to arbitrate (“Arbitration Agreement”) in its entirety. This clause requires you to arbitrate disputes with BOOMN and limits the manner in which you can seek relief from us. By agreeing to the Terms you are hereby agreeing to the Arbitration Agreement.
You agree that any dispute or claim relating in any way to: your access, use, or attempted access or use of the Platform; any products sold or distributed through the Platform; or any aspect of your relationship with BOOMN will be resolved by binding arbitration, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or BOOMN may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyright, or patent). You agree that any such arbitration shall be settled solely and exclusively by binding arbitration, rather than in court.
The arbitrator shall have exclusive authority to (1) determine the scope and enforceability of this Arbitration Agreement; and (2) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to any claim that all or part of this Arbitration Agreement is void or voidable; (3) decide the rights and liabilities, if any, of you and BOOMN; (4) grant motions dispositive of all or part of any claim; (5) award monetary damages and grant any non-monetary remedy or relief available to a party under applicable law, arbitration rules, and these Terms (including the Arbitration Agreement). The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Such an award is final and binding upon you and us.
You understand that by agreeing to this Arbitration Agreement, you and BOOMN are each waiving their right to trial by jury and to participate in a class action or class arbitration.
If any part of this Arbitration Agreement is found to be invalid or unenforceable, then such part shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue to in full force and effect.
This Arbitration Agreement shall survive the termination of your relationship with BOOMN.
BOOMN may freely assign, sub-contract and/or otherwise transfer any or all of its rights and/or obligations under these Terms to any company, firm or person. You may not transfer your rights or obligations under these Terms to anyone else.
We reserve the right, without notice and in our sole discretion, to terminate your access or use the Platform, at any time and for any reason. You understand and agree that we shall have no liability or obligation to you in such an event.
If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision shall be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, cause, or provision, or any other terms, clause, or provision of these Terms.
18. Entire Agreement
These Terms comprise the entire agreement between you and BOOMN relating to your access to and use of the Platform and Content, and supersede any and all prior discussions agreements, and understandings of any kind (including without limitation prior versions of this Terms). Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
You agree and understand that all provisions of these Terms shall survive the termination or expiration of these Terms.
20. Contact Information
If you have any questions, would like to provide feedback, or would like more information about BOOMN, please feel free to email us at email@example.com. If you would like to lodge a complaint, please contact us at firstname.lastname@example.org.
ADDITIONAL ARTIST TERMS APPENDIX
1. Rules for Creating a Listing on BOOMN
Invitation-only. Creating an audio drop on BOOMN is currently only available to Artists upon approval from BOOMN. If you wish to be considered as a future invitee, please contact us at email@example.com.
Agreement. You acknowledge that when you sell a BOOMN NFT on the Platform to a User, a contract is formed between you and that User, based on the Terms. As between BOOMN, you and the User, you are solely responsible for fulfillment of such contract.
Content uploaded to the Platform. Once invited, Artists can create a profile where they can post their biographies, certain information about themselves, link to other websites, (collectively, “Profile Information”); and upload their Audio Content, together with associated Artwork and metadata (collectively, the Profile Information, Audio Content and Artwork, shall be referred to as the “User Content”). Any Profile Information you post to the Platform will be considered non-confidential and non-proprietary. We reserve the right to prohibit, cancel, remove or reassign certain Profile Information in appropriate circumstances, as determined by us and in our sole discretion.
Contributors. To the extent such rights are not granted under these Additional Artist Terms, and save to the extent otherwise expressly agreed between the parties in writing, Artist shall obtain, maintain and pay for any and all rights, permissions, licenses, waivers and consents that may be required from any third party in connection with or arising from the minting, production, creation, sale and distribution of the BOOMN NFTs, including the hosting, reproduction, public performance and communication to the public of the User Content.
No infringement of third party rights. You must not upload any User Content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within User Content, independent of whether it is or becomes unauthorized at a later point, may constitute an infringement of third-party rights and is strictly prohibited. Any such infringements may result in termination of your access to the Platform and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rightsholder or BOOMN.
Restrictions and conditions. When using the Platform, you understand and agree that:
- All BOOMN NFTs and User Content must comply with these Terms.
- Any BOOMN NFT or User Content that violates any these Terms or any of BOOMN’s policies may be obfuscated or removed from the Platform by BOOMN (to the extent practicably or technically possible), in its sole discretion;
- You will not manipulate the price of BOOMN NFTs in any way, or interfere with any listings on the platform;
- You will not upload any content that (i) infringes any intellectual property or other proprietary rights of any third party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) 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; (iv) poses or creates a privacy or security risk to any person; or (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation;
- You will not post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- You will not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- BOOMN makes no representation or guarantee that Artists will achieve any particular outcome as the result of minting and listing their BOOMN NFTs on the Platform.
- You will not breach or circumvent any laws, regulations, third-party rights or our systems, services, policies, or determinations of your account status, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”).
- Many of our services are accessible internationally. You are responsible for complying with all local laws and regulations applicable to the sale and purchase of items;
- You will not use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose;
- You will not circumvent any technical measures used to provide our Services;
- You will not interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform; or
- You will not solicit personal information from anyone under the age of 18;
- You will not advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- You will not further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism;
- You will not obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform;
- You will not create user accounts by automated means or under false or fraudulent pretenses; and
- You will not access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.
Reservation of Rights. We reserve the right, in our sole discretion, to prohibit you from uploading User Content or minting your BOOMN NFTs. Although we are not required to monitor any User Content, we may, in our sole discretion, remove User Content at any time and for any reason without notice. BOOMN may monitor User Content to detect and prevent fraudulent activity or violation of these Terms.
Smart Contract. BOOMN makes available a standard Smart Contract for Artists to use for BOOMN NFTs. Artists may not edit or adapt the BOOMN Smart Contract. Artists acknowledge and accept that they use the BOOMN Smart Contract at their own risk and are responsible for ensuring the Smart Contract is fit for purpose. Without limiting the foregoing, BOOMN makes no warranties or representations regarding the suitability of the Smart Contract nor does BOOMN warrant or represent that the Smart Contract is free from error.
BOOMN NFT particulars. The Platform may make available certain tools that enable you to determine various aspects of the primary sale for your BOOMN NFTs, including the sale price, number of editions, descriptions and other details. As between BOOMN and you, you are responsible for determining these details.
2. Grant of Rights for User Content
By uploading User Content to the Platform, you grant a non-exclusive, royalty-free, and fully paid up license for BOOMN to use, copy, share, reproduce or otherwise distribute, publicly display, publicly perform (including on a digital streaming basis), make available and otherwise communicate to the public such User Content and each part of it from time to time. The licenses granted in this section are granted separately with respect to each item of User Content that you upload and BOOMN NFT that you mint to the Platform.
Artist acknowledges that, once minted, User Content will irrevocably be associated on the Polygon blockchain with and linked to the corresponding BOOMN NFT. Artist further acknowledges and accepts that each User who purchases a BOOMN NFT on the Platform has the right to resell, gift and otherwise transfer ownership of such BOOMN NFT to third parties on or off the Platform, even after termination or expiry of these Terms.
Without limiting the generality of these Terms, Artist agrees that the rights granted hereunder include the right for all users of the Platform to stream, playback and access the User Content as embodied and/or featured in the BOOMN NFT and for BOOMN and its successors and designees to facilitate the same.
Subject to the rights and licenses Artist grants in these Terms, as between BOOMN and Artist, Artist will retain all rights, title and interest in and to the User Content, including the copyright and all other intellectual property rights embodied in or associated with them.
Without limiting BOOMN’s rights or remedies or Artist’s obligations or warranties hereunder, Artist may request BOOMN to remove User Content (including Audio Content) from the Platform by providing no less than thirty (30) days prior’ written notice to firstname.lastname@example.org, specifying the User Content to be removed. Once such notice becomes effective, BOOMN will remove such item of User Content from being available to Users on the Platform as soon as reasonably practicable. Artist acknowledges that by removing User Content from the Platform, Users (including those who have purchased associated BOOMN NFTs) will no longer have access to such content through the Platform and will lose any Platform-specific features relating to such BOOMN NFT (such as, for example, the ability to post a public comment alongside the Audio Content). Artist indemnifies BOOMN from any claims made against BOOMN by Users in connection with Artist’s removal of User Content from the Platform.
Notwithstanding the foregoing, Artist acknowledges and agrees that when it uploads User Content to the Platform, in addition to uploading copies of such content to BOOMN’s owned or controlled servers, it is also uploading (and facilitating BOOMN to upload on Artist’s behalf) copies of such content to a distributed server protocol (or IPFS). Once uploaded to IPFS, the content may be copied numerous times and stored on multiple nodes across multiple locations. Access and use of such content outside of the Platform will not be governed by these Terms and are outside of BOOMN’s control. BOOMN has no control over and no ability to remove or takedown User Content that has been uploaded to IPFS. BOOMN has no obligation to take action on Artist’s behalf against any service that links to the User Content available on IPFS.
Marketing use. You hereby grant BOOMN the right to use your name, image and likeness (including as may be embodied in the Artwork), together with the name, image and likeness of any other performer or artist featured in the Audio Content or Artwork) for marketing or promotional purposes. You also agree that we can use your name, image, likeness, biography and other public information about you together with the name, image and likeness of any other performer or artist featured in the Audio Content or Artwork, to promote the BOOMN NFTs that you create.
3. Representations and Warranties
You hereby represent and warrant to BOOMN as follows: (i) your User Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use at any and all times during any applicable use, and (if and where relevant) to authorize BOOMN to use, your User Content pursuant to these Terms, including, without limitation, the right to upload (including to IPFS), mint, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available and otherwise communicate to the public your User Content, and each and every part thereof, on, through or via the Platform; (ii) your User Content and the availability thereof on the Platform does not and will not infringe or violate the rights of any third party, including, without limitation, any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information; (iii) you have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in your User Content in order to include their name, voice, performance or likeness in your User Content and to publish the same on the Platform; (iv) your User Content, including any comments that you may post on the Platform, is not and will not be unlawful, abusive, libelous, defamatory, pornographic or obscene, and will not promote or incite violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation; (v) BOOMN may freely exploit the User Content and each part thereof, including allowing Users to playback Audio Content, in accordance with these Terms without requiring any permission, consent, license or authorization from any other party; (vi) BOOMN’s exploitation of the User Content in accordance with these Terms will not prompt, trigger or result in any royalty, fee, remuneration or other payment being required to be made by BOOMN or any User to any Artist or any third party; and (vi) your User content does not and will not create any liability on the part of BOOMN, its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders. BOOMN reserves the right to remove your User Content, suspend or terminate your access to the Platform and/or pursue all legal remedies if we believe that any of the User Content breaches any of the foregoing representations or warranties, or otherwise infringes another person’s rights or violates any law, rule or regulation.
4. Fees and accounting
Fees. On a non-precedential, temporary basis, BOOMN agrees to waive its fee for the provision of its services to Artists. Notwithstanding the foregoing, BOOMN reserves the right to adjust the fees from time to time in accordance with Section 1 of the Terms (‘Modification of these Terms’).
Payment. Artist acknowledges that all payments deriving from primary sales of BOOMN NFTs on the Platform and secondary sales of BOOMN NFTs outside of the Platform are determined, administered and paid automatically, mechanically and solely by means of the BOOMN NFT Smart Contract used to mint the BOOMN NFT. Payments are made to the Artist’s Digital Wallet directly by Users, subsequent purchasers and/or marketplaces or exchanges on their behalf through the Smart Contract. For the avoidance of doubt, BOOMN does not make any payment to the Artist or any other party from the sale proceeds. Payments are made automatically, in the cryptocurrency used for the purchase and in accordance with the terms of the BOOMN NFT Smart Contract. It is critical that the Artist reviews and approves the Smart Contract used for the BOOMN NFT before it is minted. ONCE THE SMART CONTRACT IS APPROVED AND THE BOOMN NFT IS MINTED, IT IS TECHNICALLY IMPOSSIBLE TO CHANGE THE SMART CONTRACT TERMS, INCLUDING (WITHOUT LIMITATION) ROYALTY/FEE AMOUNTS FOR SECONDARY SALES, NUMBER OF ROYALTY/FEE RECIPIENTS, PROPORTION OF ROYALTY/FEE AMOUNTS TO BE MADE TO EACH RECIPIENT, AND THE DIGITAL WALLET ADDRESSES FOR EACH RECIPIENT (INCLUDING THE ARTIST).
Accounting, invoicing and administration. As between Artist and BOOMN, Artist shall be solely responsible for all accounting, invoicing and reporting requirements as may be imposed by local law, tax regulation or other requirements of competent authorities in respect of the sale of BOOMN NFTs, the collection of fees and receipts from Users, purchasers, marketplaces and exchanges through the Smart Contract and the payment of contributors and rightsholders.
Adequate consideration. Artist acknowledges and agrees that the fees received by Artist through the Smart Contract, together with BOOMN’s making available of the tools and functionality in respect of the BOOMN NFT on the Platform, represent the entire remuneration and consideration for all rights granted under these Terms. Without limiting the foregoing, no further payments, royalties, fees or other sums shall be due to Artist or any other rightsholder connected with the BOOMN NFT or User Content in connection with the streaming, playback, reproduction or exploitation of the User Content.
Contributors and rightsholders. Artist acknowledges that it is solely responsible for making any and all payments that may be due to rightsholders or contributors to the User Content, whether from the fees received through the Smart Contract from sales proceeds or otherwise. BOOMN shall have no liability to pay any amount to any such rightsholder, contributor or third party and, without limiting the indemnification provided by Artist in section 12 of the Terms, Artist hereby further indemnifies the BOOMN Parties from any claims made by or on behalf of such persons. Without limiting the foregoing, from time to time, the Platform may provide you with tools that enable you to identify certain Digital Wallet addresses to receive a proportion of the sale proceeds from the Smart Contract. This functionality may be made available solely as an accommodation to Artist, provided that Artist is and remains solely responsible for ensuring all applicable rightsholders are adequately remunerated. Artist acknowledges that BOOMN may at its discretion remove the fee split features or require recipients to agree to certain terms and conditions.
Withholding. If and to the extent BOOMN receives any fees from the Smart Contract that is due to Artist, BOOMN shall be entitled to deduct and withhold from any amounts otherwise payable to Artist under these Terms such amounts that are required to be deducted and withheld under applicable law with respect to any such payments. Artist shall provide any forms or other documentation required under applicable law to eliminate or reduce such deduction or withholding.
Taxes. Each of the parties and their respective affiliates is responsible for all taxes (including net income, gross receipts, franchise and property taxes and any other taxes) imposed on such party or its affiliates under applicable laws and arising as a result of or in connection with these Terms or the transactions contemplated by these Terms.
Relationship between the parties. It is the express intention of the parties that is not an employee, agent, joint venture or partner of BOOMN. Nothing in these Terms shall be interpreted or construed as creating or establishing any relationship to the contrary. Both parties acknowledge that Artist is not an employee for federal and state tax purposes and that Artist does not have a right to workers’ compensation, unemployment, disability, health, retirement benefits, or for any other benefits provided by BOOMN to its employees.
No injunctions. If BOOMN is in breach of any provision of these Terms, Artist hereby: (i) agrees that its rights and remedies shall be limited to its right to recover damages at law; and (ii) waives its right to enjoin the minting, selling, re-selling, exploitation or promotion of the BOOMN NFTs.