Terms of Service
1. ACCEPTANCE OF TERMS
Indie Music, Inc. ("Indie Music") welcomes you. Indie Music provides its service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.bandmetrics.com. In addition, when using particular Indie Music owned or operated services, you and Indie Music shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules (including but not limited to our Privacy Policy) are hereby incorporated by reference into the TOS.
2. DESCRIPTION OF SERVICE
Indie Music provides musicians with the ability to better understand their fan base and increase sales by creating robust data analytics about their music, merchandise and related matters (the "Service"). You also understand and agree that the Service may include advertisements and that these advertisements are necessary for Indie Music to provide the Service. You also understand and agree that the Service may include certain communications from Indie Music, such as service announcements, administrative messages and the Indie Music Newsletter, and that these communications are considered part of Indie Music membership. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Indie Music properties, shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that Indie Music assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
Please be aware that Indie Music may provide certain areas on the Service that contain adult or mature content. You must be at least 18 years of age to access and view such areas containing adult or mature content. Any content that is deemed offensive, when found, will be removed from our service. Any one younger than 18, when found, accessing areas of Indie Music that contain adult or mature content
will be removed from our service.
3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Indie Music has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Indie Music has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
4. Indie Music PRIVACY POLICY
Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.bandmetrics.com. You understand that through your use of the Service you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Indie Music and its affiliates.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Indie Music of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Indie Music cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Indie Music, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. Indie Music does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Indie Music be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
a) publish, sell or otherwise distribute Content obtained through Indie Music, including songs and ringtones, to another party without explicit permission from either Indie Music or the originator of Content;
b) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
c) harm minors in any way, including the publication of obscene, indecent or profane language in a manner that is accessible to minors or the general public;
d) impersonate any person or entity, including, but not limited to, a Indie Music official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
f) upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available and/or publish or license under any law or under contractual or fiduciary relationships (such as cover songs, music samples, artwork and/or images, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
g) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
h) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose (please read our complete Spam Policy);
i) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
k) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
l) collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs (a) through (k) above.
You acknowledge that Indie Music may or may not pre-screen Content, but that Indie Music and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Indie Music and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Indie Music or submitted to Indie Music.
You acknowledge, consent and agree that Indie Music may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any 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 Indie Music, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Indie Music and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
You agree that you are solely responsible for paying any royalties owed for any music you upload and distribute on Indie Music, and that Indie Music is not responsible for these royalty payments.
7. INTERSTATE NATURE OF COMMUNICATIONS ON Indie Music NETWORK
When you register with Indie Music, you acknowledge that in using Indie Music services to send electronic communications (including but not limited to email, search queries, sending messages to Indie Music, uploading photos and files to Indie Music, and other Internetactivities), you will be causing communications to be sent through Indie Music's computer networks. As a result, and also as a result of Indie Music's network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the service results in interstate data transmissions.
8. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
Indie Music does not claim ownership of Content you submit or make available for inclusion on the Service. By submitting content for inclusion on publicly accessible areas of the Service, you affirm that you own the rights to freely distribute Content to the general public and to grant Indie Music a non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service as described elsewhere in this agreement.
Moreover, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Indie Music the following worldwide, royalty-free and non-exclusive license(s), as applicable:
a) With respect to Content you submit or make available for inclusion on publicly accessible areas of Indie Music, you grant to Indie Music the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Indie Music removes such Content from the Service with the exception that Indie Music will retain the right to distribute Content to Indie Music users who received permission to download Content from Indie Music prior to the date of termination.
b) With respect to Content you submit or make available for inclusion on publicly accessible areas of Indie Music, you grant Indie Music the right to collect any and all statistics and data related to (1) the administration of reviews, (2) the administration of sales and promotions and (3) the transmission and download of Content, including songs and ringtones (collectively, "Stats"). Further, you acknowledge that Indie Music owns the exclusive rights to Stats, including the right to distribute and resell Stats at will.
"Publicly accessible" areas of the Service are those areas of the Indie Music network of properties that are intended by Indie Music to be available to the general public including areas that may be restricted to registered users of Indie Music such as reviews and promotions. However, publicly accessible areas of the Service would not include portions of Indie Music that are intended for private communication such as Indie Music email or areas off of the Indie Music network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by Indie Music.
10. INDEMNITY
You agree to indemnify and hold Indie Music and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
11. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your Indie Music ID), use of the Service, or access to the Service.
12. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Indie Music may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that reviews or uploaded Content will be retained by the Service, the maximum disk space that will be allotted on Indie Music's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Indie Music has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or
transmitted by the Service. You acknowledge that Indie Music reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Indie Music reserves the right to modify these general practices and limits from time to time.
13. MODIFICATIONS TO SERVICE
Indie Music reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Indie Music shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
14. TERMINATION
You agree that Indie Music may, under certain circumstances and without prior notice, immediately terminate your review, sale or promotion. Termination of a review, sale or promotion may include at the discretion of Indie Music the deletion of Content or removal of access to Content.
You agree that Indie Music may, under certain circumstances and without prior notice, immediately terminate your Indie Music account and access to the Service. Termination of your Indie Music account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof) as deemed necessary by Indie Music, and (c) barring of further use of the Service.
Cause for termination shall include, but not be limited to, (a) breaches or violations of the TOS 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) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in
connection with the Services.
You agree that all terminations for cause shall be made in Indie Music's sole discretion and that Indie Music shall not be liable to you or any third party for any termination of your account or access to the Service.
15. DEALINGS WITH ADVERTISERS
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 Indie Music 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.
16. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Indie Music has no control over such sites and resources, you acknowledge and agree that Indie Music is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Indie Music shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
17. Indie Music'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Indie Music or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
Indie Music grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Indie Music for use in accessing the Service.
18. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Indie Music AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) Indie Music AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Indie Music OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
19. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Indie Music AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Indie Music HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE
INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
20. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
21. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
22. NOTICE
Indie Music may provide you with notices, including those regarding changes to the TOS, by email, regular mail or postings on the Service.
23. TRADEMARK INFORMATION
The Band Metrics and/or Indie Music, Inc. logo trademark and service mark and other Indie Music product and service names are trademarks of Indie Music, Inc. (the "Indie Music Marks"). Without Indie Music's prior permission, you agree not to display or use in any manner the Indie Music Marks.
24. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR
INTELLECTUAL PROPERTY INFRINGEMENT
Indie Music respects the intellectual property of others, and we ask our users to do the same. Indie Music may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Indie Music's Copyright Agent the following information:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
c) a description of where the material that you claim is infringing is located on the site;
d) your address, telephone number, and email address;
e) a 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;
f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Indie Music's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
c/o Indie Music, Inc.
P.O. Box 250672
Atlanta, GA 30325
By email: [IP AT Band Metrics DOT com]
25. GENERAL INFORMATION
Entire Agreement. The TOS constitutes the entire agreement between you and Indie Music and governs your use of the Service, superseding any prior agreements between you and Indie Music with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Indie Music services, affiliate services, third-party content or third-party
software.
Choice of Law and Forum. The TOS and the relationship between you and Indie Music shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions. You and Indie Music agree to submit to the personal and exclusive jurisdiction of a state or federal court sitting in Fulton County, Georgia.
Waiver and Severability of Terms. The failure of Indie Music to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your Indie Music account is non-transferable and any rights to your Indie Music ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
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 the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Prior Agreements. The TOS constitutes the entire agreement between you and Indie Music and supersedes any prior or inconsistent agreements, discussions, understandings or other written or oral material.
No Waiver of Enforceability. No failure on the part of Indie Music to insist upon or enforce any provision or agreement of the Terms shall be deemed or constitute a waiver of that or any other provision or agreement, and no waiver shall be valid or enforceable unless in writing and signed by an authorized agent of the Company.
Validity of TOS. If any provision of the TOS should be found by a court of competent jurisdiction to be invalid or unenforceable, the court should endeavor to give effect to the parties' intention as reflected in such provision, and all other terms and provisions of the
TOS shall be in full force and effect.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
26. VIOLATIONS
Please report any violations of the TOS to our customer support group via email to info AT Band Metricos DOT com.
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