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Effective Date: May 6, 2011
SoundExchange reserves the right to modify or replace this Agreement at any time and in its sole discretion. In the event SoundExchange modifies or replaces this Agreement, the Effective Date, located above, will change. Your use of the Website after a change in its Effective Date constitutes your manifestation of assent to any modification or replacement of this Agreement.
You warrant and agree that you are a human individual that is eighteen (18) years of age or older, that you are not a bot, script, or other computer or machine, excluding search engine spiders, and that you have the right, power, and legal capacity to enter into this Agreement and to adhere to the terms and conditions hereunder. You further warrant and agree that you are not prohibited from assenting to the terms of this Agreement by any other agreement or duty. You warrant and agree that you will access the Website from your own computer or mobile device that that you will not impersonate any person or entity or forge any identifiers of origin or source, such as IP addresses or packet headers, in accessing or using the Website. You agree to comply, in good faith, with the terms of this Agreement.
SoundExchange reserves the right at any time to modify or discontinue the Website or any of its associated services without notice and in its sole and absolute discretion.
Users of the Website may create a Member Account (hereinafter “Member Account”), which may allow users to purchase or sell digital audio files, participate in the Website’s community, rate digital audio files, post comments concerning and reviews of digital audio files, or perform other actions than may not be available to non-members. By creating a Member Account, you agree that SoundExchange may contact you by any available means, including but not limited to by email.
You understand and agree that you are responsible for your Member Account and for any and all access thereto, whether authorized or unauthorized. You agree that it is your responsibility to keep your Member Account secure from unauthorized access. In the event your Member Account security is breached, you agree to provide immediate notice to SoundExchange. You have a duty to ensure that the information contained within your Member Account and its associated profile is accurate, current, and complete and you further agree that you have an ongoing duty to update and keep current the information provided through your Member Account if and when that information changes. You are expressly prohibited from subleasing or providing access to your Member Account or items purchased through your Member Account to third parties, whether in whole or in part.
You acknowledge and agree that SoundExchange is a Website digital audio file marketplace service provider and cannot be held liable or responsible for transactions entered into by or between users of the Website, whether through Member Accounts or otherwise. SoundExchange makes no representations or warranties as to the truth or falsity of the information submitted to the Website by its users or provided to you by a user of the website. Further, SoundExchange makes no representations or warranties as to the legality, quality, or safety of the services offered through the Website or the non-infringement of any digital audio files uploaded or sold through any Member Account. Though SoundExchange undertakes commercially reasonable efforts to verify the identity of those users that register Member Accounts, you understand and agree that SoundExchange cannot be held liable for any user’s failure to truthfully or accurately disclose their identity.
You represent and warrant that you will not, through your Member Account: (i) violate any term or condition of this Agreement; (ii) violate any applicable law, regulation, statute, ordinance, or treaty; (iii) infringe upon the rights of third parties, including trademark rights, copyright rights, patent rights, and rights of publicity and privacy; (iv) or contribute false, misleading, or inaccurate information to the Website.
SoundExchange reserves the right to delete, disable, modify, or limit access to your Member Account or to remove any digital audio files, content, comments, or ratings that violate any term or condition of this agreement or that are otherwise unlawful, harmful, offensive, or inappropriate, which will be determined in SoundExchange’s sole discretion. Though SoundExchange reserves the right to remove any content from its Website, it does not undertake a duty to patrol or police the content displayed on its Website. SoundExchange may replace, modify, or delete any and all content on its Website at any time and in its sole discretion.
You acknowledge and agree that SoundExchange may charge a commission fee for any transactions facilitated by the Website (hereinafter “Commission Fee”). This Commission Fee may be charged as a percentage of the gross sales of each digital audio file sold through the Website. SoundExchange reserves the right to change the amount of this Commission Fee or to adopt a new fee structure at any time and within in its sole discretion. In the event SoundExchange changes the amount of its Commission Fee or adopts a replacement or modified fee structure, SoundExchange will provide you with thirty (30) days prior notice by email and to the email address associated with your Member Account. SoundExchange will not be held liable to you or a third party for any modification, price change, suspension, or discontinuance of the Website or its associated services. SoundExchange reserves the right to remove a digital audio file from the Website at any time for its failure to meet sales s, which will be determined in SoundExchange’s sole and absolute discretion.
You further acknowledge and agree to pay all applicable taxes or changes imposed by any governmental entity anywhere in the world in connection with your use of the Website. Should you dispute the amount or validity of any Commission Fees charged, you must be notify SoundExchange in writing within thirty (30) days of any such dispute. You acknowledge and agree that your failure to notify SoundExchange of any dispute within thirty (30) days will constitute your express waiver of any claims related to the disputed Commission Fee.
You agree that you will not initiate any chargebacks to SoundExchange unless otherwise authorized by SoundExchange in writing. You acknowledge and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against SoundExchange.
SoundExchange hereby grants you a limited, non-exclusive, royalty free, non-sublicensable, and revocable license to use the Website for its lawful and intended purposes. You are expressly prohibited from using the Website outside of the uses expressly stated in this Agreement.
SoundExchange is the owner of the Website, including but not limited to its digital audio files, text, scripts, graphics, photos, music, videos, and interactive features, as well as its associated data and services. You are expressly prohibited from reproducing, modifying, copying, distributing, crawling, aggregating, reverse engineering, republishing, scraping, transmitting, selling, framing, or reverse engineering, in whole or in part, without the prior written consent of SoundExchange. This section does not apply to the lawful aggregation or crawling of the Website by search engines that comply with SoundExchange’s use of robots.txt.
SoundExchange is also the owner or licensee of all trademarks displayed on or through the Website, including but not limited to SOUNDEXCHANGE. You are expressly prohibited from using the trademarks, service marks, design marks, logo marks, and/or trade names of SoundExchange, or any colorable imitation thereof, in a domain name or as an indicator of source or sponsorship without the prior written consent of SoundExchange.
You are also prohibited from:
1. Any commercial use, including the redistribution, repackaging, or resale of the Website;
2. Any modification of the Website;
3. Any creation of derivative works of the Website;
4. Any use of the Website outside of its intended purposes;
5. Any use of the Website to threaten or encourage harm to others or the destruction of property;
6. Any use of the Website to violate the rights of third parties, including trademark rights, copyright rights, patent rights, and rights of publicity or privacy;
7. Any use of the Website to violate any law, statute, regulation or ordinance; or
8. Any other activity that disrupts the Website or its associated services, including denial of service attacks, exploits, or hacks.
SoundExchange may allow you to upload user generated content to the Website, including but not limited to digital audio files, videos, photographs, and textual content (hereinafter “User Generated Content”). You hereby grant SoundExchange a non-exclusive, perpetual, royalty free, worldwide, and sublicensable license to reproduce, prepare derivative works of, distribute copies of, perform publicly, or display publicly any User Generated Content that you have uploaded to the Website for any and all purposes.
In the event you upload User Generated Content to the Website, you warrant (i) that you are the sole owner of all right, title, and interest in and to the User Generated Content, (ii) that the User Generated Content is an original work of authorship and contains no material from other copyrighted works unless such copyrighted material is used with the written consent of the copyright owner, (iii) that the User Generated Content does not violate or infringe upon the personal or property rights of third parties, including without limitation rights of personality, privacy, or publicity, and (iv) that the User Generated Content does not contain any materials that violate any law, statute, ordinance, or treaty.
Disclaimer of Warranties
SOUNDEXCHANGE PROVIDES THE WEBSITE ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. SOUNDEXCHANGE DOES NOT WARRANT THAT THE WEBSITE WILL BE FREE FROM ERRORS, OMISSIONS, DOWNTIME, OR INACCURACIES. FURTHER, SOUNDEXCHANGE DOES NOT WARRANT THE AUTHENTICITY, ACCURACY, OR ORIGIN OF ANY DIGITAL AUDIO FILE DISPLAYED ON OR DISTRIBUTED THROUGH THE WEBSITE. SOUNDEXCHANGE HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. SINCE SOME JURISIDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THIS EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, SOUNDEXCHANGE’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
SOUNDEXCHANGE IS NOT RESPONSIBLE FOR AND WILL NOT BE HELD LIABLE FOR ANY TRANSACTIONS THAT TAKE PLACE THROUGH THE WEBSITE, ANY CONTENT POSTED ON THE WEBSITE, INCLUDED BUT NOT LIMITED TO USER GENERATED CONTENT, ANY THIRD PARTY LINKS POSTED TO OR AVAILABLE THROUGH THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. SOUNDEXCHANE DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS TO A MEMBER ACCOUNT, OR ALTERATION THEREOF. SOUNDEXCHANGE RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.
Limitation of Liability and Indemnification
YOU ACKNOWLEDGE AND AGREE THAT SOUNDEXCHANGE WILL NOT BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY DAMAGES THAT ARISE OUT OF THE USE AND LICENSE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT SOUNDEXCHANGE WILL ONLY BE LIABLE TO YOU FOR THE AMOUNT PAID FOR THE WEBSITE, AND IN NO CASE WILL THAT AMOUNT EXCEED $100. IF NO AMOUNT IS PAID BY YOU TO SOUNDEXCHANGE, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. IF YOUR STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, YOU SHOULD SEEK LEGAL COUNSEL TO UNDERSTAND YOUR LEGAL RIGHTS UNDER THE LAW OF YOUR STATE.
THROUGH YOUR USE OF THE WEBSITE, YOU AGREE TO HOLD HARMLESS AND INDEMNIFY SOUNDEXCHANGE, ITS DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AFFILIATES, AGENTS, AND LICENSORS WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN RELATION TO YOUR BREACH OF ANY TERM OR CONDITION OF THIS AGREEMENT, YOUR VIOLATION OF ANY APPLICABLE LAW, REGULATION, ORDINANCE, STATUTE, OR TREATY, OR A VIOLATION OF THE RIGHTS OF THIRD PARTIES. YOU ACKNOWLEDGE AND UNDERSTAND THAT THIS INDEMNITY CLAUSE MEANS THAT YOU CANNOT SUE SOUNDEXCHANGE OR RECOVER ANY DAMAGES FROM SOUNDEXCHANGE, ITS DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AFFILIATES, AGENTS, AND LICENSORS FOR THE FAILURE OF ANY TRANSACTION BETWEEN USERS OR OWNERS OF MEMBER ACCOUNTS, FOR SOUNDEXCHANGE’S REMOVAL OF ANY CONTENT FROM THE WEBSITE, OR FOR SOUNDEXCHANGE’S TERMINATION OF YOUR ACCESS TO THE WEBSITE OR YOUR MEMBER ACCOUNT. YOUR OBLIGATION TO HOLD HARMLESS AND INDEMNIFY SOUNDEXCHANGE WILL SURVIVE THE TERMINATION OR FAULRE OF THIS AGREEMENT OR YOUR CESSATION OF USE OF THE WEBSITE.
Additional Terms and Conditions
You acknowledge and understand that SoundExchange is an interactive service provider as defined in Section 230 of the Communications Decency Act. As such, SoundExchange will not be held liable for the republication of defamatory or otherwise tortious statements. You acknowledge and understand that the Website may contain links to third party websites that SoundExchange does not own or control. SoundExchange has no responsibility for or duty to monitor the content that is submitted to its Website, but it may, within its sole and absolute discretion, monitor, modify, delete, disable, or replace any content submitted to the Website without notice to you and for any reason.
You acknowledge and understand that, for all legal and non-legal purposes, the Website is located in Traverse City, Michigan, the Website is passive in nature, and the Website will not give rise to personal jurisdiction over SoundExchange in jurisdictions other than Traverse City, Michigan. You further acknowledge and agree that the laws and legal principles of the State of Michigan will govern this Agreement without regards to its conflicts of laws principles.
YOU AND SOUNDEXCHANGE AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN TRAVERSE CITY, MICHIGAN AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES RELEASED BY THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR WILL HAVE THE DISCRETION AND AUTHORITY TO AWARD COSTS AND ATTORNEYS’ FEES TO THE PREVAILING PARTY AND WILL DECIDE THE ARBITRATION PROCEEDING UNDER THE LEGAL PRINCIPLES AND LAWS OF THE STATE OF MICHIGAN. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND SOUNDEXCHANGE AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF MICHIGAN IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND SOUNDEXCHANGE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
You understand and agree that all waivers of terms or provisions of this Agreement, as well as any consent to a breach of this Agreement, must be made in writing and signed by the party to be charged.
YOU AND SOUNDEXCHANGE BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRES. YOUR FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.