TERMS OF USE AND END-USER LICENSE AGREEMENT
Please read and understand this Terms of Use and End-User License Agreement
(“EULA”), Ility’s Privacy Policy (located at http://AudioVine.com/Privacy.html),
the Peer-to-Peer Software User Advisory (located at
http://Audiovine.com/P2PAdvisory.html), and, if applicable, the Submission
Agreement (located at http://AudioVine.com/Submission.html), before installing
and/or using any software from this site. This EULA, as supplemented by Ility’s
Privacy Policy, Peer-to-Peer Software User Advisory and, if applicable, Artists’
Submission Agreement, the terms of which are all hereby incorporated by
reference, constitutes a valid and binding agreement between Ility Software LLC
(“Ility”, “us”, “our” or “we”), the owner of Ility Software and the domain
located at www.AudioVine.com (the “Site”), and you ("you," "your" “User” or
"Member") on the other. (Hereinafter, Ility, Ility Software and/or the Site, are
collectively and/individually referred to as “AudioVine”).
In order to access and utilize AudioVine, you must first agree to the terms and
conditions of this EULA. This EULA may only be entered into by persons age 18 years or older. If you are a United States resident under the
age of 18 but at least 13 years of age, you may use AudioVine only under the
supervision of a parent or legal guardian who agrees to be bound by this EULA.
After you have read this EULA, you may indicate your acceptance of its terms by
clicking the ACCEPT button below. By clicking the "ACCEPT" button yourself,
you affirm that you are 18 years or older. If you are a
parent or legal guardian agreeing to the terms of this EULA for the benefit of a
child under the age of 18 but at least 13 years of age, be advised that you are
fully responsible for his or her use of AudioVine, including all financial
charges and legal liability that he or she may incur. AudioVine is not intended
for children under 13 years of age. If you are under 13, please do not use this
Site.
BY CLICKING ON THE "ACCEPT” BUTTON AND/OR TAKING ANY STEP TO DOWNLOAD, INSTALL,
ACCESS, OR USE AUDIOVINE, YOU ACKNOWLEDGE THAT YOU: (1) HAVE READ THE TERMS OF
THIS EULA; and (2) AGREE TO BE BOUND BY ITS TERMS WITHOUT EXCEPTION.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, PLEASE DO NOT ATTEMPT TO COPY,
INSTALL, ACCESS OR USE AUDIOVINE OR ANY CONTENT (AS HEREINAFTER DEFINED). IF YOU
DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT ENTITLED TO ANY RIGHTS
GRANTED HEREUNDER, OR TO ACCESS, COPY, INSTALL OR USE AUDIOVINE AND/OR ACCESS
ANY CONTENT.
1. GENERAL PROVISIONS.
a. Modification of this EULA. Ility may from time to time amend, remove,
supplement or modify the terms of this EULA without specific notice to you. Any
such amendments or modifications to this EULA will be posted on the Site. It is
your responsibility to check the terms of this EULA, including the terms of the
Privacy Policy, the Peer-to-Peer Software User Advisory, and, if applicable, the
Submission Agreement, periodically for changes. Your continued use of AudioVine
following the posting of any such changes will mean that you accept and agree to
same. If you do not agree to be bound by this EULA as amended, this EULA shall
be deemed terminated and the provisions of Section 20 below shall apply.
b. Definitions. The following definitions apply to this EULA (and the Artist's
Submission Agreement if applicable), beginning at their first mention.
i. “Content” refers to all data, information and other
materials to which access is granted, and/or which are processed and/or
transferred by or through AudioVine and/or stored on the Site, regardless of
whether such data, information or other material is owned by AudioVine or
otherwise, including but not limited to: all audio and/or video files
(including, but not limited to digital downloads whether such downloads are
permanent, tethered, or limited in time or play-duration), Artist Content
(defined herein), lyrics, images, text, graphics, User interfaces, visual
interfaces, design, digital conversion, photographs, trademarks, logos, sound,
software (defined herein), artwork, proprietary materials, including without
limitation, the design, look, feel, layout, organization, structure, and
arrangement of such materials.
ii. “Artist Content” refers to, without limitation, any
and all Content submitted pursuant to the Artist Submission Agreement and that
are accessible to Users through AudioVine, including but not limited to: all
music, audio, video recordings, audio-visual works and recordings, sound, vocal,
voice and voice reproduction recordings, images, photographs, portraits,
likenesses, lyrics, text, writings or spoken words, art work, graphics, visual
effects, data, event information, artist information (real or fictional)
communications and materials posted on the “Artist’s Blog” section of the Site
or otherwise, regardless of the tangible medium, broadcast medium, format or
form.
iii. “Ility Software” and the “Program” refers to the
“software” (defined below) owned and operated by Ility, including but not
limited to any updates, modifications, fixes, upgrades or any other changes
thereto.
iv. “Software” shall refer to all binary data, textual
data, images, executable code, binary code, example code, source code, key code,
documentation, instructions, or any portion or combination thereof. Software may
also contain several third party components, including open source components,
which are provided and licensed to you under the terms and conditions of the
respective third party licenses (hereafter, “Third Party Software”).
v. “Use,” or “using” refers to any and all use or uses
of AudioVine, in whole or in part, directly and indirectly, including but not
limited to installation of the Program, browsing the Site, registration with
AudioVine, accessing, previewing, uploading, downloading, submitting, copying,
transferring, storing of Content, and any general usage of AudioVine, its
services, systems, the Site and/or the Program.
vi. “User/Users” shall refer to all persons, and/or
entities that use AudioVine, including, but not limited to, all present or
former representatives of such persons or entities, and all other persons
acting, or purporting to act, on behalf of each such person or entity.
vii. "Ility Software LLC" refers to the company itself
and all of its members, directors, officers, managers, employees,
representatives, agents, consultants and associates.
c. Your AudioVine Account and Password. Upon acceptance of this EULA, you may
register as an AudioVine User. Registration with AudioVine requires that you
open an AudioVine Account and create a unique ID and password for such account.
You are responsible for safeguarding the confidentiality of your AudioVine
password(s) and username(s), and for any use or misuse of your AudioVine Account
resulting from any third party using your password or username. You may only
open an AudioVine Account for yourself, and not for any other person. You agree
that the information that you provide to AudioVine during the registration
process and any other communications with AudioVine are true, correct, complete,
and current and you agree to update such information as necessary so that it
remains current, true, correct, and complete. You agree that any information
provided by you to us will not violate any law or regulation or infringe the
rights of any third party. In addition, you agree that AudioVine may store and
use the information you provide during your registration for use in maintaining
your AudioVine Account and for billing purposes.
d. Points and Payments.
Points have no real dollar value and cannot be redeemed for cash. For more
information on how points may be exchanged for music downloads please see
http://www.audiovine.com/about.php
Payment for Points are made to AudioVine through Google Checkout, a third party
payment service owned and operated by Google Payment Corp., that handles all
orders and payment processing on behalf of AudioVine. When you click on “Buy”
you will be taken to “Google Checkout” a to complete your transaction. Google
Checkout requires a valid credit card to process your purchase. You agree that
Google Payment Corp. is fully responsible for the security of all information
that you provide to it for the purpose of processing your transactions and for
the accuracy of all amounts charged to your credit card. At no time does
AudioVine see your credit card number information.
You agree to pay for all Points that you purchase, and for any additional
amounts as may be accrued by or in connection with your AudioVine Account
(including any taxes, administrative fees and late fees, as applicable). You are
responsible for the timely payment of all fees and for providing Google Payment
Corp. With a valid credit card for payment of all fees.
All fees will be billed through Google Checkout to the credit card that you
designate during the registration process. In order to designate a different
credit card, or if there is a change in your credit card status, you must change
your payment account information online through Google Checkout.
e. Cookies. To enable the Program, you must set your web browser to allow
cookies. Failure to do so will adversely effect your ability to use AudioVine.
The Program uses cookies to confirm your AudioVine Account credentials.
2. CONSENT TO ESTABLISH OF PEER-TO-PEER CONNECTIONS.
AudioVine is designed to enable "peer-to-peer" connections among and between
Users’ computers for the purposes of direct communication, data exchange and
interaction by, between and among such computers, with minimum involvement of
central computer servers. Once you install and activate AudioVine, the Program
creates a directory on your computer (an “AudioVine directory”) through which
all peer-to-peer communications and connections shall be directed by the
Program. The Program is not activated upon start-up of your computer. You must
log-in to your AudioVine Account to activate the Program, and manually exit the
Program to de-activate it. If you log-off of AudioVine but do not exit the
Program, the Program will continue to run until you exit it or turn off your
computer.
Upon activation of the Program, AudioVine automatically creates connections
between and among the AudioVine directories located on other User’s computers
that are contemporaneously running the Program. The Program creates such
connections without human oversight or interaction. Peer-to-peer data exchange
with your computer may occur at any time that the Program is running on your
computer, whether or not you are actively using AudioVine.
Until you exit the Program or turn off your computer, the Program shall continue
to run and all Content contained in your AudioVine directory shall be accessible
to other Users. You acknowledge and consent to the fact that Ility Software
creates such peer-to-peer connections, and you agree that Ility is not
responsible for the conduct of any person or entity (or such person or entity’s
computers) that interacts with you or your computer as a result of your
installation of the Program and/or use of AudioVine.
AudioVine does not own the Artist Content made available through AudioVine nor
do we have any control over the data contained therein. In addition, other than
directing that all AudioVine peer-to-peer communication, data exchange and
interaction be conducted through each Users’ AudioVine directory, we have no
control over the content of those directories, nor of the content of any User’s
files or folders not included in such directory. Once AudioVine assigns an
Artist’s File a unique code (see, Submission Agreement,
http://AudioVine.com/Submission.html) we do not examine any information that is
transferred through use of the Program and the Site. Ility Software does not
permit us to control or monitor the actions of any User other than to determine
whether a User has a sufficient number of Points required to download any music
file submitted to us pursuant to the Artists’ Submission Agreement. AudioVine
maintains node caches solely for the purpose of identifying the ip addresses of
Users to enable AudioVine peer-to-peer connections and permit Users to download
or upload Artist Content and you hereby consent to same.
3. LICENSE GRANT.
Subject to the terms and conditions of this EULA, including any amendments
thereto, Ility hereby grants to you a limited, non-exclusive, non-assignable,
non-transferable, non-sublicenseable, revokable license to Use AudioVine. You
understand and agree that Ility reserves the right to terminate/revoke this
license for any reason at any time without warning. This license entitles you to
save one (1) copy of Ility Software on each computer device that you own. If you
do not agree to the terms of this EULA, you are not entitled to use the Ility
Software, nor access Content nor use the Site.
AudioVine, Content and Third Party Software are protected under applicable
copyright, trademark, licensing and trade dress laws, and based upon other
intellectual and proprietary rights and unfair competition laws. Use of
AudioVine except as permitted under the terms of this EULA is strictly
prohibited. You understand and agree that this license does not transfer to you
or confer upon you any ownership rights to AudioVine, Ility Software, Third
Party Software or Content, and that the only rights you do have are those
expressly set forth in the EULA and any applicable Third Party Software license
with respect to such software. You understand and agree that your use of
AudioVine shall not entitle you to any rights beyond this license.
4. UPDATES.
AudioVine may from time to time present programming fixes, updates and upgrades
to you, including version updates to the Program and/or the functionality of the
Site. You agree to accept any and all such programming fixes, updates and
upgrades, including version updates, and further acknowledge and agree that your
failure to accept any such fixes, updates and upgrades will permit AudioVine to
terminate your right to use AudioVine.
5. THIRD-PARTY WEBSITES.
AudioVine may provide links to other independent third-party websites (“Linked
Websites”). AudioVine provides any such links solely as a convenience to you.
Unless otherwise expressly stated, Linked Websites are not under the control of
AudioVine and AudioVine is not responsible for and does not endorse nor is
responsible for the content of such Linked Websites, and disclaims liability to
the fullest extent permitted by law for any information, data, communications or
materials available on Linked Sites. In the even that you access any Linked
Website, you do so at your own risk
6. TRADEMARKS/SERVICE MARKS.
“AudioVine.com”, “AudioVine”, “Ility Software LLC”, “Ility Software,” the
AudioVine logo, the Ility logo, and all trademarks, service marks and trade
names of AudioVine and/or Ility appearing or imbedded in the Ility Software or
on the Site are owned by Ility. All such trademarks, logos, service marks, or
trade names may not be used in connection with any product or service that is
not owned and operated by Ility without the prior written consent of Ility.
Other trademarks, service marks, graphics and logos used in connection with the
Site may be the trademarks of their respective owners. You are granted no right
or license with respect to any of the trademarks mentioned above and any use of
such trademarks.
7. CONTENT AND INTELLECTUAL PROPERTY.
You agree that all Content, is owned, controlled or licensed by or to AudioVine
and is protected by trade dress, copyright, patent and trademark laws, and
various other intellectual property rights and unfair competition laws.
You agree as a condition to your use of AudioVine that you will not use
AudioVine, directly or indirectly, in whole or in part, to infringe upon the
intellectual property or other rights of others in any way. Any unauthorized
reproduction, distribution, modification, publication, public display and/or
performance of Content provided through the Site, in whole or in part, is
strictly prohibited. Except as expressly provided in the herein, no part of the
Site and no Content may be copied, reproduced, republished, uploaded, posted,
publicly displayed, encoded, translated, distributed or transmitted in any way
(including “mirroring”) to any other computer, server, network or other medium
for publication or distribution or for any commercial enterprise, without the
express prior written consent of AudioVine.
8. EXPLICIT ARTIST CONTENT.
AudioVine does not own or control Artist Content that is available on the Site.
Some material may not be suitable for Users of all ages and/or may be considered
offensive to some Users. AudioVine does not endorse the views expressed by any
Artist and we do are not responsible for any material incorporated in or
submitted as Artist Content and disclaim all liability therefor. Without
limiting the foregoing, AudioVine is not responsible for and assumes no
liability for any statements, opinions, falsehoods, obscenity, artistic
expression, nudity or profanity included in any Artist Content or accompanying
material submitted by any artist. Parents are encouraged to monitor their
children’s access to all such materials in order to ensure their protection.
9. RESTRICTIONS ON USE.
By agreeing to the terms of this EULA and/or using AudioVine, you further agree
that you shall not in any manner engage in or attempt to engage in any of the
following actions, in whole or in part in connection with your use of AudioVine:
a. Redistribute the executable components or portions of the executable
components of the Ility Software;
b. Reverse engineer, decompile, or modify the Ility Software and/or Content from
its original form as downloaded from the Site, nor use the Ility Software in a
way that is inconsistent with the terms of the EULA;
c. Transfer or assign the license granted hereunder;
d. Remove any proprietary notices included in the Program, on the Site, in any
software and/or Content;
e. Interfere, circumvent, breach tamper with or in any manner compromise any of
AudioVine’s security measures or components, or the functionality of the Program
or Site for any reason;
f. Interfere, circumvent, breach, tamper with or in any manner compromise the
security of any computer or network connected to the Site;
g. Modify or make derivative works of the Ility Software and/or Content, unless
otherwise permitted by the Artist Submission Agreement;
h. Except as expressly provided under this EULA, no Content may be copied,
reproduced, republished, uploaded, download, posted, publicly displayed,
encoded, translated, distributed or transmitted.
i Forge headers or otherwise manipulate identifiers in order to disguise the
origin of Content;
j. Intentionally make available “spoofed” files or data, or identity files in a
manner intended to mislead Users as to the properties and/or content of such
files;
k. Utilize AudioVine and/or Content for any non-personal or commercial purpose
or for the benefit of any third party, other than as specified in the Artist's
Submission Agreement;
l. Interfere with or disrupt the normal functioning of AudioVine, or otherwise
act in a manner that negatively affects other Users.
m. Trace, seek to trace, reverse-look up, collect, store, copy, redistribute
and/or transfer any information or communications of other Users or monitor,
interdict or intercept data, information, communications, and/or Content
transferred through or made available to or by AudioVine;
n. Access, transfer, copy, collect, distribute and/or transmit data, files, or
information of any kind stored on or transmitted through other User’s computers,
that is not located in the AudioVine directory on such other User’s computers.
o. Use AudioVine as a means to modify, delete or damage any information
contained on the personal computer of any Users;
p. Impersonate another User or provide false identity information to gain access
to or use AudioVine;
q. Use any User password or AudioVine Account without authorization;
r. Use AudioVine to violate any applicable local, state, national or
international laws or to engage in any tortious activities, including but not
limited to using Ility Software and/or the Site to:
i. Transmit or communicate any data that is unlawful,
harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive
of another's privacy, hateful, or racially, ethnically or otherwise
objectionable;
ii. Impersonate any person or entity or falsely state
or otherwise misrepresent your affiliation with a person or entity;
iii. Transmit, access or communicate any data that you
do not have a right to transmit under any law or under contractual or fiduciary
relationship (such as inside information, and/or proprietary and confidential
information), or that would be violative of any statutory or common law privacy
rights;
iv. Transmit, access or communicate any data that
infringes any patent, trademark, trade secret, copyright or other proprietary
rights of any person or entity;
v. Transmit or communicate any data 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.
vi. Access, transfer, copy, collect, distribute and/or
transmit personal or proprietary information to any person or entity including
but not limited to: social security numbers, EIN numbers, names, addresses,
birth dates, email account passwords, credit card, financial and/or banking
information.
USE OF AUDIOVINE OR ANY PART OF THE PROGRAM OR SITE, EXCEPT AS PERMITTED HEREIN,
IS STRICTLY PROHIBITED.
10. RESIDENCY RESTRICTIONS.
You agree to abide by applicable export
control laws and not attempt to export or transfer (by electronic transmission
or otherwise), any content or software subject to restrictions under such laws
to a national destination or person prohibited under such laws. AudioVine does not own or control Artist Content that is available on the Site. AudioVine disclaims all liability for access to Artist Content that results in export control violations.
11. ACCESS RESTRICTION.
We reserve the right to deny access to AudioVine, or any portion thereof, to any
User and/or to terminate the License granted hereunder in our sole discretion,
without notice.
12. COPYRIGHT MATTERS.
It is our policy to respond to any notice of alleged infringement that complies
with the Digital Millennium Copyright Act (hereafter, the “Act”, the text of
which may be found at the US Copyright Office Web Site (located at
www.copyright.gov/legislation/dmca.pdf) and other applicable intellectual
property laws (hereafter “Infringement Notice”). We respect the intellectual
property of others, and we ask you to do the same.
We reserve the right to disable or terminate the AudioVine Accounts of Users who
we believe to be infringing the intellectual property rights of others, and/or
the right change, remove and/or deny access to any Content or other materials
available through AudioVine. If in response to an Infringement Notice, we
disable or terminate an AudioVine Account and/or deny access to or remove
Content, we will make a good faith effort to contact the User whose AudioVine
Account is affected and/or who submitted the Content so that he or she may make
a counter notification pursuant to sections 512(g)(2) and (3) of the Act. It is
our policy to document all Notices on which we act. As with all legal notices, a
copy of the Infringement Notice may be sent to one or more third parties who may
make it available to the public.
a. Infringement Notices. If you believe that Audiovine is being used in a way
that enables copyright infringement, please send a notice (“Infringement
Notice”) to our Designated Agent by e-mail at legal@audiovine.com, or by regular
mail to Ility Software, Inc. Attn: Copyright Notification, 244 5th Avenue, No.
J208, New York, New York 10001, and provide the following information:
1. An electronic or physical signature of the person
authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that you claim
has been infringed;
3. A description of where the material that you claim is
infringing is located on the Site;
4. Your address, telephone number and e-mail address;
5. A statement by you that you have a good-faith belief
that the disputed use is not authorized by the copyright owner, it's agent or
the law;
6. 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; and
7. Your signature on the Infringement Notice.
Please note that you will be liable for damages (including costs and attorneys'
fees) if you intentionally misrepresent that a copyright has been infringed by
or through the use of AudioVine. The Designated Agent should be contacted only
if you believe that a copyright is being infringed. The Designated Agent will
not respond to any other inquiries.
b. Counter Notification. Any User whose AudioVine Account has been disabled or
terminated, or who submitted Content the access to which has been denied or that
has been removed in response to an Infringement Notice may make a counter
notification (a “Counter Notification”) pursuant to sections 512(g)(2) and (3)
of the Act. When we receive a counter notification, we may reinstate the User’s
AudioVine Account, and/or permit access to and restore the Content in question.
To be effective, the counter-notification must be a written communication sent
to our Designated Agent by e-mail at legal@AudioVine.com or by regular mail to
Ility Software, Inc. Attn: Copyright Counter Notification, 244 5th Avenue, No.
J208, New York, New York 10001, and include the following:
1. Your physical or electronic signature;
2. Identification of the Content that was removed or to which
access has been denied, including the location on the Site where the Content had
appeared before it was removed and/or access to it was denied;
3. A statement from you under the penalty of perjury, that
you have a good faith belief that the Content was removed or access to it denied
as a result of mistake or misidentification of the Content;
4. Your name, physical address and telephone number, and a
statement that you consent to the jurisdiction of Federal District Court for the
judicial district in which your physical address is located, or if your physical
address is outside of the United States, to the United States District Court for
the Southern District of New York, and that you will accept service of process
from the person who provided notification of allegedly infringing material or an
agent of such person; and
5. Include the following statement: "I swear, under penalty
of perjury, that I have a good faith belief that the AudioVine Account that was
disabled and/or each item of Content that was removed and to which access has
been denied, is the result of a mistake or misidentification of the Content that
was claimed to have been infringed by the complainant."
6. Sign the Counter Notification.
13. USE OF CONTENT.
Your use of AudioVine will enable you to listen to, view and/or read (as the
case may be) Content for your personal entertainment use. In addition, upon
payment of any requisite fees, AudioVine will enable you to listen to, copy,
download, upload and play music files available through AudioVine solely for
personal, noncommercial use. Content may be owned by AudioVine or by third
parties. However, in all circumstances, you understand and acknowledge that this
EULA does not grant to you any commercial, sale, resale, reproduction,
distribution or promotional use rights with respect to Content, and that your
rights with respect to Content are limited by copyright law, trademark law, and
other proprietary rights. You agree to comply with all applicable laws in your
use of the Content and to protect the Content owners’ rights in such Content.
In addition to the foregoing, specifically with respect to music files, pursuant
to the terms of this EULA and upon your payment of any requisite fee, you shall
be granted a license to perform the following, although additional privileges
may be permitted by the owner or licensor of the music: you may copy any
purchased music file an unlimited number of times to CD and/or any computer or
portable music playback device that you own. This license extends only to the
downloading, playing, burning and transferring of music files for your own
personal use. Although you have purchased a license to download, play, burn,
transfer and store music files (according to the license outlined herein), you
do not have any commercial or promotional rights to any the music files as
result of such license.
Any burning, transferring, storing or exporting capabilities of music files are
solely an accommodation to you and shall not constitute a grant or waiver (or
other limitation or implication) of any rights of the copyright owners in any
content, sound recording, underlying musical composition or artwork embodied in
any music file. Any other use of a music file may constitute a copyright
infringement and is prohibited.
AudioVine and its licensors reserve the right to change, remove, suspend or
disable access to any Content (including but not limited to Artist Content)
available through or comprising a part of the Site at any time without notice.
AudioVine will not be liable for the removal of or disabling of access to any
such Content in any event. Music files purchased prior to any such change,
however, will maintain the usage permissions that were in effect at the time of
such purchase although such files may no longer be available through AudioVine.
14. NO WARRANTIES.
You understand that AudioVine makes no representations or warranties of any kind
concerning the quality, safety or suitability of AudioVine, Content, Artist
Content or Third Party Software, either express or implied, including without
limitation any implied warranties of merchantability, fitness for a particular
purpose. In addition, we do not represent or warrant that AudioVine, Artist
Content, Third Party Software or User’s computers shall operate error-free, and
will be free of viruses or other harmful components, or that defects will be
corrected. You further understand that access to and use of the Site, the Ility
Software and Content is provided "as is", and may contain imperfections and/or
errors that might cause problems with and/or damage to some systems and/or data.
Ility assumes no responsibility and shall not be responsible for damage to your
computer or other property (including but not limited to confidential, personal
or proprietary information) due to your use of AudioVine. Artist Content may not be available in all countries.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ILITY: (1) DOES NOT MAKE ANY
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ILITY
SOFTWARE, THE SITE, OR CONTENT, (2) EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND/OR FITNESS FOR A
PARTICULAR PURPOSE; AND (3) DOES NOT WARRANT THAT THE DOWNLOADS, CONTENT, AND/OR
YOUR USE OF THE SITE AND/OR THE ILITY SOFTWARE, WILL BE UNINTERRUPTED OR ERROR
FREE.
Ility makes no warranty that any particular audio or video playback device or
system will be compatible with Content. It is your sole responsibility to ensure
that your audio and video devices and/or playback systems will function
correctly.
15. LIABILITY.
You agree that in no event shall Ility be liable or obligated to you in any
manner for, without limitation, ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL,
INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS
AND LOST REVENUE, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, even if
Ility has been advised of the possibility of such damages. User agrees to accept
all liability for any damages, consequential or otherwise, resulting from the
use and/or misuse of AudioVine, directly or otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, WE WILL NOT BE LIABLE
TO YOU FOR ANY AMOUNT GREATER THAN THE AMOUNT THAT IS RECEIVED BY US FROM YOU
FOR YOUR USE OF AUDIOVINE. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO
APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS
AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE
FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING
LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
16. INDEMNIFICATION.
You are solely responsible for (a) all activities occurring under your AudioVine
Account including the activities of all parties that you allow to have access to
your AudioVine Account; and (b) all data, information, programs and other
materials that you include in your AudioVine directory that were not included
therein automatically by use of the Program. In addition, you agree to defend,
indemnify and hold harmless Ility, its members, employees, officers, directors,
licensors and affiliates from and against any and all claims, losses, liability,
costs and expenses (including but not limited to attorneys' fees) arising from
your violation of any warranty, representation or covenant under this EULA, your
infringement of any third-party's rights (including, without limitation,
infringement of any copyright, violation of any proprietary right and invasion
of any privacy rights), and/or the use or misuse of Audiovine by you or any
third party using your password(s) and/or username(s). These obligations will
survive any termination of your relationship with us.
Ility expressly disclaims liability of any kind with respect to any access or
use by you of Third Party Software and Linked Websites, including but not
limited to Google Checkout.
17. RELEASE.
In the event that a dispute arises for any reason between you and any other User
and/or Third Party Software provider and/or Google Payment Corp. and/or any
artist who submitted Artist Content to AudioVine, you release Ility Software,
LLC from claims, demands and damages (actual and consequential) of every kind
and nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way connected with such disputes.
If you are a California resident, you waive California Civil Code §1542, which
provides: “A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
18. SALES TAX.
AudioVine is required to charge sales tax for purchases in the United States.
19. REFUND POLICY.
There is no refund once you have purchased Points in your AudioVine Account.
With respect to your use of Points, once you click the "Buy" button, the
requisite number of Points to permit you to download the designated music file
are credited against your AudioVine Account. However, AudioVine reserves the
right to modify this policy, in its sole discretion and on a case-by-case basis.
If you believe you are entitled to a refund of Points that have been credited
against your AudioVine Account please contact support@AudioVine.com and provide
the name of the music file at issue and the basis for your request.
20. TERMINATION/CANCELLATION.
This EULA, including but not limited to the license hereunder, shall terminate,
without notice, in the event of the following: (i) you fail to agree or to
comply with any of the terms and conditions set forth in this EULA; (ii) we do
not receive in a timely manner (whether from you or any other person/entity) any
payment due from you; and/or (iii) you cancel your AudioVine Account by
completing a Notice of Cancellation available under the “My Accounts” page
located at www.AudioVine.com. Upon termination of this EULA, you must
immediately cease your Use of AudioVine and remove the Ility Software from your
computer, and all copies of same. There are no refunds for any unused Points in
your AudioVine Account at the time termination or cancellation.
If AudioVine takes any legal action against you as a result of your violation of
this EULA, you acknowledge and agree that AudioVine will be entitled to recover
from you, and you agree to pay, all reasonable attorneys’ fees and costs
incurred by AudioVine as a result of of such action, in addition to any other
relief to which AudioVine may be entitled.
21. SURVIVAL.
The Sections 5 through 9, 13 through 17, and 20 hereunder shall survive
termination of this EULA.
22. MISCELLANEOUS.
a. Entire Agreement. This EULA, together with Ility’s Privacy Policy (located at
http://AudioVine.com/Privacy.html), the Peer-to-Peer Software User Advisory
(located at http://Audiovine.com/P2PAdvisory.html), and, if applicable, the
Submission Agreement (located at http://AudioVine.com/Submission.html)
constitutes the entire and only agreement between us and you, and supersedes all
prior or contemporaneous agreements, representations, warranties and
understandings, whether implied or expressed, written or oral, with respect to
AudioVine, its use, and the subject matter of this EULA. This EULA may not be
altered or modified, except by written amendment or collateral agreement which
expressly refers to this EULA and which is duly executed by us.
b. Governing Law, Jurisdiction and Venue. This EULA shall be governed by the law
of the State of New York, United States without giving effect to the principles of the
conflicts of laws. All litigation arising out of or relating to this Agreement
or any of the transactions contemplated hereby shall be brought exclusively in
the United States District Court for Southern District of New York or the State
courts of New York located in New York County, and the parties consent to
personal jurisdiction therein. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to this EULA.
c. Remedies. You acknowledge that a breach of this EULA will cause irreparable
and continuing damage to us for which money damages are insufficient, and you
acknowledge in such event that Ility shall, in addition to other remedies
available at law and in equity, be entitled to injunctive relief and/or a decree
for specific performance, and such other relief as may be proper without the
necessity of posting a bond to secure same. Nothing contained in this paragraph
or elsewhere in this EULA shall be construed to limit remedies or relief
available pursuant to statutory or other claims that Ility, its affiliates
and/or licensors may have under separate legal authority, including but not
limited to, any claim for intellectual property infringement.
d. Partial Invalidity/Waiver. If any part of this EULA is found void and
unenforceable, it will not affect the validity of the balance of the EULA, which
shall remain valid and enforceable according to the fullest extent intended by
Ility. No waiver by us of any breach or default by you of any of the covenants
or agreements herein set forth shall be deemed a waiver as to any subsequent
and/or similar breach or default.
e. No Third Party Beneficiaries. This EULA is not intended, and shall not be
interpreted or construed, to confer any rights or remedies on any third parties
ANY USER WHO KNOWS OF OR SUSPECTS A VIOLATION OF THE TERMS OF THIS EULA OR A
BREACH OF AUDIOVINE SECURITY IS REQUESTED TO INFORM AUDIOVINE IMMEDIATELY BY
CONTACTING support@audiovine.com. We reserve the right to investigate complaints
or reported violations of this EULA and to take any action we deem appropriate,
including but not limited to reporting any suspected unlawful activity to law
enforcement officials, regulators, or other third parties and disclosing any
information necessary or appropriate to such persons or entities relating to
your profile, email addresses, usage history, posted materials, IP addresses and
traffic information.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AUDIOVINE
MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE,
SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Last Revised: July 25th, 2009