The Purpose of These Terms
This agreement pertains to your access to TheIndie.biz, The Indie applications on Facebook®, Bebo, hi5, Myspace, Orkut, Twitter, and other social platforms, The Indie widgets designed for embedding on any website, TheIndustryResource.com; CollegeDJ.net, Danoo.com and any of our partnering websites (collectively referred to herein as "Websites"); and any other online, offline on "On Air" services offered by The Indie (all collectively the "Service"). These Terms include the policy for acceptable use of the Service and content posted on the Service and set forth your rights, obligations and restrictions regarding use of the Service.
We have attempted to lay out in this document all terms and conditions for the safe and fruitful interaction of the members of our varied community. If a matter or dispute arises that is not covered by these terms, it will be resolved at Company's sole discretion, but in conversation with the affected parties and within the governing law. If a member disagrees with the resolution, their recourse will be to delete their account.
A. The Service, is provided by Tirium Inc. doing business as The Indie (hereafter the "Company"). You may use the Service as a "Fan" (meaning that you browse a webpage with the Service and do not upload or create content for the Service), or as an "Artist" (meaning you register for the Service to create and/or upload content, including clicking on the "I Accept" button or checking the "I Accept" box). The word "User" in these Terms refers to both Fans and Artists. These Terms and Conditions ("Terms" or "Agreement") are a legal agreement between you and Tirium Inc.
B. By using the Service as a Visitor or Member, you: (a) agree to be bound by the Terms, (b) represent and warrant that you are authorized to bind yourself or any entity (your band, broadcast, and/or your company) on whose behalf you enter into the Terms and (c) represent and warrant that any such entity agrees to be bound by these Terms. Please read these Terms carefully and save them. If you do not agree with them, you should leave The Indie, its websites, partners and you should not register for the Service.
1.1 In consideration for your use of the Service, you represent and warrant:
1.2. Authority To Enter This Agreement. You have all necessary right, power and authority to enter into and perform as required under this Agreement. You are not barred from receiving the Service under the laws of the United States or other applicable jurisdiction.
1.3. Age. You are 13 years old or older. Under United States law, you must be at least 13 years of age to use this Service. (Children's Online Privacy Protection Act of 1998 at http://www.ftc.gov/ogc/coppa1.htm).
1.4. Accuracy. All information provided by you to the Company is true, accurate, valid, current and complete. Your e-mail address is regularly checked. If you do not provide such information, or Company reasonably suspects that you have not, the Company has the right to suspend or terminate your account and refuse any and all use or access to the Service, including forfeiture of any prizes or awards won in any Contest.
2. Additional Terms And Modification Of Terms
2.1. Additional Terms. To use the Service, you may be required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions, they are hereby incorporated into these Terms.
2.2. Third Party Terms. The Service may integrate with other services provided by third parties. If you access or use the Service through a third party website or other interface, or use a software or other product in connection with the Service, you may be subject to additional terms and conditions.
2.3. Modification of Terms. The Company may modify these Terms from time to time. You agree that such modification shall be effective upon posting on the Websites and you will be bound to any changes when you use the Service after such modification is posted. It is therefore important that you review these Terms on the Websites regularly to ensure you are updated regarding any changes. If the modification constitutes a material change, we may notify you via The Company's internal messaging service (or other service), or via internet mail to the address provided in your Account Profile. What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgment. Notice will be considered to have been delivered once sent or posted. Any use of the Service after alteration of the Terms will constitute acceptance by you of such changes. Your sole remedy should you not agree with the altered Terms shall be close your account and to cease use of the Service.
3. Your Conduct And Activities During Use Of The Service
3.2. Personal Non-Commercial Use. You agree that: (a) your account is for your sole, personal use (or the entity on whose behalf you are entering into this Agreement); (b) you will not authorize others to make any use of any kind of your account or profile; (c) except as expressly authorized by this Agreement, you will not make any use (of any kind) of the Service, this site, or its contents for any commercial purposes, nor will you authorize others to do so.
3.3. Password, Account And Security. You agree to keep your password secure and confidential and not to disclose it to anyone and will not permit any third party to access your account. You agree to notify The Company immediately of any actual or suspected unauthorized use of your password or account or other breach of security.
3.4. Unauthorized Conduct. You agree that you will not engage in any illegal or prohibited conduct, on or through the Service or its Websites, including but not limited to the following:
3.4.1. Illegal Activity. You agree not to: (i) engage in any: criminal activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, or sending of viruses or other harmful files; copyright infringement, patent infringement, or theft of trade secrets; or violation of export control laws or any and all applicable local, state, national and international laws and regulations in connection with your use of the Service; or (ii) use the Service for any illegal or unauthorized purpose. International Users must comply with all local laws regarding online conduct and acceptable content.
3.4.2. Advertising Or Solicitation. You agree not to: (i) create, upload, post, e-mail, transmit, submit or otherwise make available unsolicited commercial messages to any Users except in areas designated for such purpose; (ii) engage in advertising to, or solicitation of, any User to buy or sell any products or services; (iii) collect usernames and/or email addresses for the purpose of sending unsolicited email; (iv) use any information obtained from the Service or its Websites in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Users from such advertising or solicitation, The Company reserves the right to restrict the number of messages which a User may send to other Users in any 24-hour period to a number which The Company deems appropriate in its sole discretion. You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed by The Company without notice and may result in termination of your account;
3.4.3. Obscuring Advertisements. You agree not to cover or obscure the banner advertisements on your personal profile page, or any of the Services web pages via HTML/CSS or any other means;
3.4.4. Scripting, Hacking Or Interfering. You agree not to: (i) make any automated use of the system, (such as through scripts, data mining, robots, screen-scraping, or similar data gathering and extraction tools); (ii) make available any material that contains software viruses, worms, any other code, files or programs of a destructive nature (or designed to interrupt, destroy or limit the functionality of the Service or user software or hardware); (iii) interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service; or (iv) act in a manner that negatively affects the ability of other Users to use the Service or engage in real-time dialogue via the Service's messaging services;
3.4.5. Impersonation And Use Of Another's Account. You agree not to (i) attempt to or actually impersonate another User or person; (ii) use any information obtained from the Service in order to impersonate another User or person or (iii) use the account, username, or password of another User at any time;
3.4.6. Harassment. You agree not to abuse, harass, threaten, intimidate or harm Users, or other persons, or use any information obtained from the Service in order to do so;
3.4.7. False Association And Attribution. You agree not to (i) engage in any conduct or statement which states or implies any false association between The Company or its Service and yourself or another entity, (ii) forge or manipulate headers or identifiers in order to disguise the origin of any content transmitted through the Service; or (iii) misattribute or otherwise claim as your own the copyrighted works of another party.
3.5 Unauthorized Content. The following prohibitions are applicable to all information that you upload to or through the Service (including, but not limited to, any songs, band information, audio, sounds, video, data, images, graphics, photos, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS, HTML and links) ("Content"). You agree that you will not post or transmit any prohibited Content, including but not limited to the following:
3.5.1. Inappropriate Material. You agree not post on the Service, or transmit to other Users any Content or material which: (i) is illegal, inaccurate, false, misleading, defamatory, abusive, obscene, profane, vulgar, tortious, libelous, patently offensive; (ii) promotes illegal activities or furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (iii) is sexually oriented or sexually explicit, or which contains nudity or obscene or lewd subject matter, exploits people in a sexual manner, contains a link to an adult website, or uses sexually suggestive imagery; (iv) solicits personal information from anyone under 18; (v) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; (vi) provides any telephone numbers, street addresses, last names, URLs or email addresses of any other person; (vii) includes a photograph of another person that you have posted without that person's consent; (viii) is excessively violent or exploits people in a violent manner; (ix) is threatening, harassing or abusive, or which advocates threats against, harassment of or abuse of another person; (x) is hateful, harmful or racially offensive, or which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (xi) infringes or violates another party's rights (including, but not limited to, copyrights, licenses, other intellectual property rights, contractual or fiduciary rights and obligations, and rights of privacy and publicity); (xii) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files; (xiii) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming"; (xiv) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xv) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); (xvi) contains unfair, misleading or deceptive Content intended to draw traffic to the profile or other page; or (xvii) otherwise offensive or objectionable.
3.5.2. Personal Information. Publicly available profiles posted by a User or other publicly accessible information made available by the User may not include their telephone number, street address or last name;
3.5.3. Content Of Other Users. The Service contains Content of Users and other licensors. Except for Content posted by you or as expressly authorized by this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Service, or its Partners, or its Websites.
3.6. Linking. When you post or link an outside website to Content hosted on The Company's servers, you must provide a link back to the corresponding display page on the Service's website for each item of Content. However, you must not embed mp3 Content hosted on the Service's Websites on outside websites that cause such Content to "autoplay" unless using features and services provided by The Company created expressly for this purpose.
3.7. Maintenance. You agree to (a) maintain and promptly update your account information to keep it true, accurate, current and complete; (b) maintain an accurate, up to date, valid, and regularly checked email address for the purposes of receiving notification of changes to these Terms, and (c) ensure that messages from The Company are not being filtered, altered, or blocked by your email software or service.
3.8. You Are Responsible For Your Conduct And Your Content. With respect to the Service, you are fully and solely responsible for (a) any activity that occurs under your screen name, password or account, including any violation of this Agreement, (b) your own conduct and your interactions with other Users, and (c) any Content, material or information that you upload, create, post, display, publish, e-mail, communicate, transmit or otherwise make available, or which you transmit to other Users.
3.9. Company's Rights Regarding Conduct And Content. The Company reserves the right to investigate and take appropriate action against anyone who, in The Company's sole discretion, (a) violates the foregoing provisions regarding prohibited conduct and Content, (b) violates or is alleged to violate any applicable law or the letter or spirit of this Agreement, (c) engages in conduct which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. The Company's action may include, without limitation, reporting you to law enforcement authorities, terminating your account, removing, refusing or moving offending Content from the Service or Websites, or refuse payment of any monies owed to the Member at the time of the dispute. If a dispute or claim arises from Content, The Company reserves the right to remove the Content until a bona fide resolution has been reached. The Company is in no position to resolve such claims or disputes, and we will not referee your disputes. There are no assurances whatsoever that any Content you submit shall actually be utilized on the Company site or, if so utilized, continue to be available for any particular time.
3.10. Disclaimer Regarding Conduct And Content. Despite the above-stated prohibitions on inappropriate conduct and Content, information provided by Users and conduct of Users may violate some or all of the foregoing prohibitions. The Company does not endorse and has no control over the conduct or Content of its Users. User conduct and Content is not necessarily reviewed by The Company and does not necessarily reflect the opinions or policies of The Company. The Company assumes no responsibility or liability for this conduct or Content and makes no warranties, express or implied, as to User conduct or Content, including its accuracy or reliability, or of any material or information that you or other Users transmit by or through the Service. The Company assumes no responsibility for monitoring the Service or Websites for inappropriate conduct or Content. If at any time The Company chooses, in its sole discretion, to monitor the Service or Websites, The Company nonetheless assumes no responsibility to modify or remove any inappropriate Content, and no responsibility for the conduct any User.
3.12. Reporting. If you become aware of misuse of the Service or its Websites by any person, including any inappropriate conduct or Content, please contact The Company at email@example.com (subject: Misuse).
4. Proprietary Rights In Content That You Provide To The Service
4.1. You Have All Necessary Rights. For all Content that you upload to the Service, you represent and warrant that (a) you own or otherwise have all rights, approvals, licenses and/or consents necessary to submit the Content and (b) that use of the Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademarks, contract rights or any other rights of any person. You agree to pay all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Service. You further guarantee that the compositions, recordings, lyrics, text and other materials contained in the Content are original, created only by you or the entity on whose behalf you are entering into this Agreement and do not contain any "samples" or excerpts that would infringe on the copyrights of others and do not otherwise infringe on the rights of any other individuals or companies.
4.2. Your Ownership Of Proprietary Rights In Uploaded Content. The Company does not claim ownership of any intellectual property rights over the Content (including text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials) that you upload to the Service. Any intellectual property rights, including the copyright, in uploaded Content belongs solely to you, subject to the non-exclusive license granted herein. After uploading your Content to the Service, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose.
4.3. License Of Uploaded Content To The Company. By displaying or publishing ("uploading") any Content on or through the Service or its Websites, you hereby grant to The Company a limited license to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display, reproduce, and distribute such Content (in whole or in part) or prepare derivative works, in any format or medium now known or later developed, and synchronize such Content with photo slideshows or video solely on and through the Service, its Websites, its Partners, or its affiliates. The license is non-exclusive (meaning you are free to license your Content to anyone else in addition to The Company), fully-paid and royalty-free (meaning that The Company is not required to pay you for the use on the Service or its Websites of the Content that you upload), sublicensable (so that The Company is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Service and Websites and to permit Users to view, hear, read, stream, download and link to your Content), and worldwide (because the Internet, the Service and the Websites are global in reach). The license does not grant The Company the right to distribute your Content outside of the Service or its Websites, except as otherwise provided herein. The Company may transfer or sell its Content license to others. You represent and warrant that you have sufficient ownership rights to grant this license.
4.4. License For Syndication. You also grant the Company the right to use and sublicense the Content, such as songs, Upcoming Shows and Band Information (including, but not limited to, names, likenesses, biographical material, logos, marks or trade names of you or any individuals performing or otherwise represented in the Content or the artist or band included or referred to in the Content) for the purposes of syndication of the Company's products and services, including, without limitation, by syndicating and embedding widgets and band pages on third party websites, at The Company's discretion, without any payment to you or any other persons or companies. The Company may sublicense its right to display your Band Information and Upcoming Shows Listings to anyone.
4.4.1. License For Promotional Purposes. If you register your band via any of our interfaces, or if you have specified label type "Unsigned" or "Indie Label" when registering your band via the TheIndie.biz interface, you grant the Company the right to use the Content, such as songs, Upcoming Shows, and Band Information for the purpose of promotion of The Company's products and services without any payment to you or any other persons or companies. All bands may rescind this right at any time by removing content and deleting their account from The Company, The Service, its Websites and Partners.
4.5. Waiver of Performance Royalties. You grant The Company a waiver of any performance royalties on the Content when performed by The Company in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the Content to grant The Company such waiver.
4.5.1. Sub-waiver of Performance Royalties. If you register your band via the Service, , Websites, or its Partners, you grant The Company the right to waive, on your behalf, any performance royalties on the Content when performed by a third party in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the Content to grant The Company such waiver. All bands may rescind this right at any time by removing content and deleting their account from The Company, The Service, Websites and Partners.
4.6. Distribution Controls. We encourage users to make their Content available under terms that, in our opinion, are more user-friendly than have become standard in most jurisdictions. Accordingly, we offer the ability to mark your Content as, (a) available only in streaming format (not downloadable), (b) downloadable in MP3 format or (c) as licensed under a Creative Commons license. When you upload your song you are electing to make that content (a) available in streaming format, (b) however, premium artist may elect to make each piece of content downloaded in MP3 format by registered Fans of TheIndie.biz, partners of the Company for the purpose of digitally broadcasting your music. By selecting to mark your content as licensed under a Creative Commons License, you explicitly agree to releasing your song to the commons as described at www.creativecommons.com. The Company may for legal or operational reasons, change the options available for control over distribution of Content. If we do this we will attempt to select the new option that best fits your original choice. This will constitute a material change of these terms and we will notify you as explained herein. Your option after receiving such change is to pick a different option than the one we chose for you, or delete the Content.
4.7. Content Removal. You can remove your Content at any time by deleting your account. Deletion of your account will not terminate any Content licenses granted prior to deletion of your account.
5. Proprietary Rights In The Company's And Third-Party Content And Technology
5.1. The Company's Ownership Of Proprietary Rights. The Service contains Content and technology of The Company that is protected by copyright, trademark, patent, trade secret and other laws.
5.2. Created Content. Any content created using the Service shall be owned by The Company. For example, all copyrights in reviews, ratings, rankings, charts, playlists, podcasts, blogs, newsletters, broadcasts, XML, and RSS shall be owned by The Company and licensed to you and other users of the Service pursuant to the terms hereof.
5.3. Service. You acknowledge that the Service contains copyrighted material, trademarks, and other proprietary information of The Company and its licensors and you agree that except for the limited license granted hereunder, all right, title and interest to the Service and the contents therein remains with The Company or third parties.
5.4. Websites. The compilation of content comprising the Service and its Websites are the exclusive property of The Company and protected by U.S. and international copyright laws.
5.5. Software. All software used on this site is the property of The Company or its software licensors and is protected by United States and international copyright laws. You agree not to translate, reverse engineer, decompile, disassemble, modify or create derivative works based on any of the software constituting or provided through the Service. You agree not to circumvent any technology used by The Company or its licensors to protect content accessible via the Service.
5.6. Trademarks. The Indie, The Indie.biz, The Industry Resource, Hot Opportunities, Before they're big, they're here, Before you're big, you're here, We're Listening, trademarks and servicemarks are the property of Tirium Inc. ("the Marks"). Without prior permission from The Indie or Tirium Inc, you agree not to display or use the Marks in any manner.
5.7. Limited License Of Company Content To User. Subject to the terms and conditions hereof, The Company hereby grants you a limited, revocable, nonsublicensable license to display the Company Content (excluding any software code) solely for your personal use in connection with viewing the Service's Websites. No other rights are granted to User in the Company's content other than those rights granted explicitly herein. You agree to comply with any distribution controls and terms applicable to content made available through the Service, as set forth in Paragraph 4.6. You further agree to comply with all other restrictions on copying and distribution of content stated in these Terms.
6. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of The Company to terminate all privileges of any User who repeatedly infringes the copyright rights of others upon receipt of prompt notification to The Company by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service or its Websites in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service or its Websites; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. The Company's Copyright Agent for notice of claims of copyright infringement can be reached as follows:
By email: firstname.lastname@example.org (Subject: Copyright Agent).
8. Service Terms
8.1. General. The Company reserves the right, but has no obligation, to take any of the following actions in its sole discretion at any time and for any reason, and you agree that we will not be liable to you or any third party for taking any of these actions.
8.2. Company's Right To Control Service. The Company reserves the right, in its sole discretion, to reject, refuse to post or remove any Content (including private messages) by you, or to restrict, suspend, or terminate any license granted hereunder and/or your access to all or any part of the Service or its Websites at any time, for any or no reason, with or without prior notice, and without liability.
8.3. Fees. You acknowledge that The Company reserves the right to charge for the Service and its Websites and to change its fees from time to time in its discretion. If The Company terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
8.4. Monitoring. The Company may monitor the Content available on the Service.
8.5. Availability. The Company may change, suspend, or discontinue all or any part of the Service at any time, with or without reason. You acknowledge that the operation of our site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and The Company shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. The Company has no obligation to continue producing or releasing new versions of the Service or any associated software and/or Content.
8.6. Account Access. The Company may restrict, suspend, or terminate your access to all or any part of the Service, deactivate your account, or delete your account and all related information and files in your account. You acknowledge, consent and agree that The Company may access, preserve, disclose or delete your account information and Content if required to do so by law or in a good faith belief that such act is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of The Company, its users and the public. After a period of inactivity, The Company reserves the right to disable or terminate a user's account. If an account has been deactivated for inactivity, the name associated with that account may be given to another Registered User without notice to you or such other party.
9. Additional Specific Service Conditions
9.1. Customize Off-Line (any non-online partner channels) Partner Feed. Registered users who request to have their content be distributed through any of our Off Line Partners Feeds may be required to contribute to the Company by either using a collection of indie points, indie credits or additional fees.
9.2. Contest Entry. As used herein the "Contest" shall mean the ongoing reviewing, ranking and rating of songs for any contest hosted by The Company. The Company reserves the right to determine which songs are "similar" to other songs. Your Contest Entry entitles you only to the first round of review and all subsequent rounds, reviews and rankings are unpaid-for Awards for winning the first round. Performance in the contest may earn you additional Awards (including but not limited to badges, promotional opportunities, cash awards, prizes and contract opportunities).
9.3. Radio Partner Submissions. If you purchase a radio partner submission and submit any audio or visual material ("Material") you hereby grant additional rights to The Company as follows:
9.3.1. Additional License Regarding The Indie's Other Radio Partners. You authorize The Company to grant on your behalf the following with regards to your Audio Content: a current, non-exclusive, worldwide, and fully paid-up up license to and any of the Company's digital radio partners existing today or added in the future ("Radio Partners") to:
Reproduce, distribute, perform publicly, display publicly, and perform digitally the Material in whole or in part, to the extent deemed necessary by The Company or Radio Partners, each in its sole discretion, in connection with the digital broadcasting of the Material via the Radio Partner's digital radio service and the advertising, promotion and marketing of the Radio Partner's website and services; use any trademarks, service marks or trade names incorporated in the Material or associated with any artists, producers or other individuals whose performances are embodied in the Material, to the extent deemed necessary by The Company or Radio Partners, each in its sole discretion, in connection with the digital broadcasting of the Material via the Radio Partner's digital radio service and the advertising, promotion and marketing of the Radio Partner's website and services; use the name and likeness of any artists, producers or other individuals whose performances are embodied in the Material, to the extent deemed necessary by The Company or Radio Partners, in its sole discretion, in connection with the digital broadcasting of the Material via the Radio Partner's digital radio service and the advertising, promotion and marketing of the Radio Partner's website and services.
9.3.2. Collective Bargaining. You further agree and acknowledge that The Company and our Radio Partners are not a signatory to any collective bargaining agreement and are not obligated to make any payments under any such agreement.
9.3.3. Disclaimer. Without limiting any other provision of this Agreement, you agree that The Company and our Radio Partners shall not be obligated to obtain any other license, from any person, firm, corporation or other entity, in connection with the exploitation or use of any of the Material, trademarks, trade names, names and likenesses, and/or any other rights granted by you to The Company or our radio partners in this Agreement, in any country or territory of the world, including, without limitation, any performance right organization, mechanical royalty collection organization or society (including the Harry Fox Agency and NMPA), music publisher, administrator, record label or other company.
9.4. Audio Hosting. As used herein "Audio Hosting" shall mean the upload, storage, web serving, and streaming of a single unit of digital audio media and associated metadata.
9.5. Upcoming Shows. As used herein "Upcoming Shows" shall mean text information announcing the details of a musical performance. This information may be but is not obligated to be displayed in a variety of ways including but limited to websites, newsletters, and XML documents.
9.6. Playlist and Blog Programming (podcasts). As used herein the "podcasts" shall mean a sequential series of posts containing text, audio, and other media, and a corresponding multimedia XML file conforming to the RSS specification.
9.7. Premium Membership. As used herein the "Premium Membership" shall mean a bundled product including increased Audio Hosting, Hot Opportunity submissions, detailed statistics regarding songs performance, profile, demographics and geographics, and other services (determined by the Company), all conferred as benefits for a single band.
9.9. Payment. If by reason of death or disability you are unable to receive the Service for which you contracted, you and your estate may elect to be relieved of payment obligations for the Service excepting those received before death or onset of disability.
9.10. TheIndie.bz and its Service. You agree that you recognize that The Indie, its websites and Service are currently a 'beta' release and is undergoing testing. You agree that you understand that The Indie and its Service may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software 'bugs' still being actively fixed by The Company's engineering team and may have other issues affecting availability and functionality.
9.11. Album Art and Music Samples On The Indie. You acknowledge that album art and music samples made available by the Company, TheIndie.biz, Websites, Service and its Partners or any of its affiliate websites or services are the copyrighted, trademark and proprietary information of third-parties and, with respect to such material, any reproduction, publication, further distribution or public exhibition of materials provided at this site, in whole or in part, is strictly prohibited.
9.12. Self service promotion & advertising. All advertising purchased through The Company's self promotional tools are considered final sales. If you enter a "maximum budget" for a promotional campaign, by submitting your payment information (credit card or bank information) you commit yourself to the payment of the maximum budget, without any refunds. If, however, The Company fails to deliver the advertising or promotion to fulfill the cost expressed by your maximum budget, then The Company shall refund the unspent amount, or, if your account has not yet been charged, The Company shall deduct the unspent amount from the balance that is charged to your account. All sales of advertising through the Company dashboard for self
10. Disputes Between Users. You are solely responsible for your interactions with other Users of the Service or its Websites. The Company reserves the right, but has no obligation, to monitor disputes between you and other Users.
11. Term And Termination
11.1. Term. This Agreement shall become effective upon your acceptance of the Terms by your use of the Service and shall remain in effect in perpetuity unless terminated hereunder.
11.2. Termination. Either you or The Company may terminate your account at any time, for any reason or no reason, without explanation. You agree that The Company may, without prior notice, immediately terminate your account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to: (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. The Company shall not be liable to you or any third-party for any termination of your account, made in The Company's sole discretion.
11.3. Public Content. With respect to Content you mark with a Creative Commons license prior to deleting your account or terminating this Agreement, such license shall survive such deletion or termination. The Company's license to display, sublicense, and syndicate Band Information and Upcoming Show listings also survives deletion of your accounts.
11.4. Performance Royalty Waiver. Any performance royalty waiver made by The Company before you deleted your Audio Content survives the deletion. It is solely your responsibility to identify, contact and cancel the performance waiver from those parties for whom we had waived the rights on your behalf.
11.6. Upcoming Show Listing. You may cancel your Upcoming Shows (Shows) by deleting your Shows from your account.
11.7. Contest Entry. You may cancel your Contest Entry at any time, but will under no situation be entitled to a refund. Canceling your Contest entry will be considered forfeit of any prizes or awards won in the Contest. The Company retains the right after you cancel your Entry to display statistics related to the performance of the Song in the Contest.
11.8. Radio Partner Submission. You may cancel your Radio Partner Submission at any time and if you cancel within thirty (15) days of purchase, you are entitled to a no-questions-asked refund. Upon your emailed request to email@example.com (Subject: Cancel Radio Submission) being received by us, we will submit a request to all Radio Partners to delete the song from their music library and process your refund if applicable. We are obviously not responsible for any copies of your song that may have been downloaded from our site or Radio Partner's before they remove it. We are also not responsible for the speed at which our Radio Partners processes your cancellation request.
11.9. Featured Artists. You may cancel your "Feature Artist", "Indie Worthy" artist listing at any time before the date of the Feature, but will under no situation be entitled to a refund. Please email firstname.lastname@example.org (subject: Cancel Featured Artist Listing)
11.10. Premium Membership. You may cancel your Premium Membership at any time and if you cancel within thirty (15) days of purchase without using either the Contest Entry or Featured Artist, Radio Partner submission, or any additional service provided by the. If you've used any service offered by the Company within the first 15 days neither a partial or full refund will issued. Partial and Full refunds will be via PayPal only. Upon receipt of your emailed request to email@example.com (subject: Refund Requested), we will proceed to delete your song from our system within up to thirty (30) days after receipt of your request. We are obviously not responsible for any copies of your song that may have been downloaded from our site before we removed your material. All requests for refunds should include your The Indie account email address, group name, mailing address and contact number.
11.11. Breach. In the event your access to the Service is suspended due to the breach of this Agreement, you agree that all fees then paid to The Company by you shall be nonrefundable. In the event of termination by The Company, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system.
12. Disclaimers, Warranties And Limitations On Liability
12.1. Disclaimers. The Company is not responsible for any incorrect or inaccurate Content posted on or through the Service or its Websites, whether caused by Users or by any of the equipment or programming associated with or utilized in the Service or its Websites. Profiles created and posted by Users may contain links to other websites. The Company is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by The Company. Inclusion of any linked website on or through the Service or its Websites does not imply approval or endorsement of the linked website by The Company. When you access these third-party sites, you do so at your own risk. The Company takes no responsibility for third party advertisements which are posted on or through the Service or its Websites, nor does it take any responsibility for the goods or services provided by its advertisers. The Company is not responsible for the conduct, whether online or offline, of any User of the Service or its Websites. The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Company Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Service or its Websites. Under no circumstances shall The Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Service or its Websites, attendance at a Company event, from any Content posted on or through the Service or its Websites, or from the conduct of any Users of the Service or its Websites, whether online or offline.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY PROVIDES THE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OR INFORMATION COLLECTED FOR OR PROVIDED TO USERS UNDER THIS AGREEMENT. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE OR ANY SERVICES PROVIDED TO THE REGISTERED USER UNDER THIS AGREEMENT. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED SERVICE. IN THE EVENT OF THE COMPANY'S BREACH OF WARRANTY, THE SOLE AND EXCLUSIVE REMEDY SHALL BE A REFUND OF THE AMOUNTS PAID FOR THE SERVICE BY THE REGISTERED USER.
12.3. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE COMPANY'S AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY YOU FOR YOUR ACCOUNT.
CERTAIN JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OF THE ABOVE LIMITATIONS IN SECTION 12.2 and 12.3 MAY NOT APPLY TO YOU.
12.5. U.S. Export Controls. Software available in connection with the Service (the "Software") is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
12.6. Accuracy. Opinions, advice, statements, offers, information or other Content made available through the Service are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not: (i) guarantee the accuracy, completeness or usefulness of any information on the service, and (ii) adopt, endorse nor accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party other than The Company. Under no circumstances will The Company be responsible for any loss or damage resulting from anyone's reliance on information or other content posted on the service, or transmitted to or by any registered users.
12.7. Advertisements. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that The Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
12.8. Beta Releases Of All Or Portions Of The Service. The Service or portions of the Service may be labeled 'Beta.' All disclaimers and limitations of liability set forth herein apply to any Service or portion of the Service labeled 'Beta.' Further, you specifically agree that you understand that any Service or portion of the Service labeled 'Beta' may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software 'bugs' and may have other issues affecting availability and functionality. In addition to all other disclaimers and limitations of liability herein, you specifically agree that The Company is not responsible or liable for any error, problem, omission, malfunction, interruption, defect, delay, or failure, in any regard, concerning any Service or portion of the Service labeled or not labeled 'Beta.'
13. Indemnity. You agree to indemnify and hold harmless The Company, its officers, directors, employees, agents and third parties, harmless for any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your connection to or Use of the Service, including any breach by you of the terms of this Agreement and any claims arising from the Content you submit, post, transmit or make available through the Company, its Service, its Websites, its Partners, or your use of the Service or its Websites. You specifically indemnify The Company of any claims that may arise from the inaccuracy of the Upcoming Shows, Band Information, Partners sites, Radio or Contest Entry.
14. General Provisions
14.1. Rights Reserved. The Company and user retain all rights and licenses not explicitly granted hereunder.
14.2. Binding agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
14.3. Choice of law and forum. These Terms, the relationship between you and The Company, and any dispute involving the Service, the Websites or these Terms, shall be governed by (and construed and interpreted in accordance with) the laws of New York, without regard to its conflict of law provisions or your actual state or country of residence. You hereby irrevocably submit to the personal and exclusive jurisdiction and venue of the federal and state courts serving the City and County of New York, other than for actions to enforce any order or judgment entered by such courts, in the event of any dispute arising out of or relating to this Agreement.
14.4. Severability and Waiver. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, and the parties agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision. The failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
14.5. Survival. Unless otherwise explicitly stated, these Terms will survive the expiration or deletion your account for any reason. The Company may assign any or all of its rights hereunder in the event of a merger or acquisition of all or substantially all of the assets to which this Agreement relates.
14.6. No Partnership. The parties bear the relationship to each other of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, or agency relationship between them, nor shall either party have the power or authority by virtue of this Agreement to bind the other.
14.7. Entire Agreement. This Agreement, contains the entire agreement between you and The Company regarding the use of this Service, and it supersedes all prior and contemporaneous agreements, promises, representations, warranties, and understandings of the parties regarding the same subject matter. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Company services, affiliate services, third-party content, or third-party software, but unless explicitly noted otherwise, this Agreement shall govern in the event of any inconsistency between this Agreement and any such additional terms and conditions. In particular, this Agreement shall govern in the event of any inconsistency between this Agreement and and of the following additional agreements: The Industry Resource, Hot Opportunities, Industry Contact Center, and Radio Partner Submissions.
14.8. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms that you bring must be brought within one (1) year after such claim or cause of action arose or be forever barred.
14.9. Third Party Rights. Nothing in this agreement shall confer any rights or benefits to third parties.
14.10. Counsel. Although we have attempted to outline above the terms on which you may use the Service in straightforward English, please be aware that these terms, if accepted by you, create a binding legal agreement between you and The Company. We strongly urge that before accepting these terms you print out a copy and review it with your attorney, manager and other representatives and if you have no such representatives that you seek other independent qualified guidance.
BY USING THIS SERVICE YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.