BANDECKY
GENERAL TERMS AND CONDITIONS OF USE
Welcome to Bandecky.com (“Bandecky”), owned and operated by Bandecky, Inc. Your right to access and use the Bandecky website is expressly conditioned on your agreement to the General Terms and Conditions of Use below. Please carefully review these General Terms and Conditions of Use. If you agree to them, please indicate your agreement by clicking on “I Agree” at the end of this document. By clicking “I Agree,” you enter into a binding agreement with Bandecky to be bound by these General Terms and Conditions of Use. If you do not agree to them, please click “I Do Not Agree” at the end of this document and you will be returned to the Home Page of the Bandecky website.
Numerous services are offered over the Bandecky website (“Services”), some of which are subject to separate posted guidelines (“Services Guidelines”) that supplement these General Terms and Conditions of Use. The General Terms and Conditions of Use contain a variety of provisions that are generally applicable to the Services and some provisions that apply to particular Services. You should understand that you will be bound by the entire General Terms and Conditions of Use.
Bandecky reserves the right to modify these General Terms and Conditions of Use and/or the Services Guidelines at any time without notice to you. If Bandecky modifies its Service Guidelines or these General Terms and Conditions of Use you may terminate your agreement with Bandecky. Bandecky may provide notice by e-mail or by publishing the changes on its website. This agreement will automatically terminate if you fail to comply with any term. No notice will be required from Bandecky to effect such termination. Upon any termination of this agreement by either you or Bandecky, you agree to immediately discontinue use of the Bandecky Services.
Because the General Terms and Conditions of Use contain legal obligations, please read them carefully.
1. Registration
2. Privacy Policy
3. Age Restrictions
4. Posting or Publishing Content on Bandecky Website
5. Uploading Content to Artist’s Webpages
6. Downloading Content From Bandecky
7. Artist’s License to Bandecky And Bandecky Members
8. Bandecky’s Rights Over Content; Submissions of Ideas; Trademarks
9. No Liability For Uploaded Content
10. Links To Other Websites
11. Restrictions on Use of Bandecky Website
12. Use of Bandecky Flash Player
13. Disclaimer of Warranties
14. Limitation of Liability
15. Disclaimer Regarding Third Party Content
16. Advertisers and Content Linked to Bandecky Website
17. No License to Intellectual Property of Bandecky and Others
18. Linking to Bandecky; Use of Bandecky Logo
19. Copyright, Trademark and Patent Notices
20. Intellectual Property Infringement Claims
21. Storage
22. Indemnity and Release
23. Limitation of Actions
24. Arbitration, Governing Law And Forum For Disputes
25. Export Controls
26. Miscellaneous
27. Violations Of Terms And Conditions
1. Registration. The Bandecky website may be used by musicians interested in promoting their careers and/or selling downloads of their music (“Artists”) and by persons interested in learning about artists and/or listening to or purchasing music (“Members”). (Artists and Members are collectively referred to as “you” throughout this agreement.) All Artists and Members must register before using the Bandecky website. You represent and warrant that all registration information (“Registration Information”) you provide is true, accurate and complete and you agree to promptly update your Registration Information whenever required to maintain its accuracy and completeness. If at any time Bandecky reasonably believes that your Registration Information is not true, accurate and complete, Bandecky will have the right to immediately terminate your right to access and use the Bandecky website and Services.
2. Privacy Policy. Bandecky reserves the right to use your Registration Information subject to conditions set forth in the Bandecky Privacy Policy. By clicking “I Agree” at the end of these General Terms and Conditions of Use, you are consenting to allow Bandecky to use your Registration Information subject to the Privacy Policy, so please read it carefully if you have any questions about Bandecky’s treatment of personal information you provide.
3. Age Restrictions. Bandecky does not discriminate based upon age, race, gender, nationality, religion, ethnicity, sexual orientation or other any other protected status. However, persons under the age of 13 may not access or use the Bandecky website without providing verified parental consent in accordance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”). If you authorize a person under 13 to access or use the Bandecky website, you agree to remain legally responsible for that person’s conduct and for controlling that person’s access to and use of the Bandecky website. SOME AREAS OF THE BANDECKY WEBSITE MAY CONTAIN MATERIALS THAT ARE INAPPROPRIATE FOR MINORS.
4. Posting or Publishing Content on Bandecky Website Generally. Any person posting or publishing materials on the Bandecky website must strictly comply with these General Terms and Conditions of Use. You hereby acknowledge and agree that you are solely responsible and remain liable for all information, text, code, data, music sound recordings, musical compositions, software, photographs, graphics, video, chat, messages, files or other materials you post or publish on the Bandecky website (“Content”). You specifically represent, warrant and agree that you own or have obtained all legal rights necessary to post or publish any Content you post or publish on the Bandecky website, and that no Content you postor publish on the Bandecky website will infringe upon the rights of any third party, including without limitation any copyright, trademark, privacy, publicity or other personal or property rights, or contain libelous, defamatory or otherwise unlawful material. PARAGRAPH 11 [“Restrictions on Use of Bandecky Website”] CONTAINS NUMEROUS FURTHER RESTRICTIONS YOU MUST AGREE TO PRIOR TO POSTING OR PUBLISHING CONTENT ON THE BANDECKY WEBSITE.
5. Uploading Content to Artist’s Webpages. In addition to the general provisions contained in this agreement affecting all users of the Bandecky website, an Artist uploading Content to the Bandecky website must strictly comply with certain specific terms and conditions. PRIOR TO UPLOADING ANY CONTENT TO THE BANDECKY WEBSITE, ARTIST ACKNOWLEDGES AND AGREES THAT BANDECKY UTILIZES NO DIGITAL RIGHTS MANAGEMENT (“DRM”) TECHNOLOGY AND THAT BANDECKY SHALL NOT BE LIABLE FOR MEMBERS’ UNAUTHORIZED USES OF ARTIST’S CONTENT. ARTIST FURTHER ACKNOWLEDGES AND AGREES THAT NO “COVER RECORDINGS” (i.e., RECORDINGS OF MUSICAL COMPOSITIONS WRITTEN AND/OR OWNED BY OTHER PERSONS OR COMPANIES) ARE INCLUDED IN ANY CONTENT ARTIST POSTS OR PUBLISHES.
In addition, Artist specifically represents, warrants and agrees that:
(a) Artist owns all legal rights necessary to post or publish the Content on the Bandecky website;
(b) Artist owns all legal rights necessary to grant Bandecky and its Members the license described in Paragraph 7 below and to grant all other rights granted herein.
(c) Artist is the exclusive copyright owner of all musical compositions contained or embodied in the Content;
(d) Artist is the exclusive copyright owner of all master recordings comprised in the Content or is otherwise legally entitled to upload any such Content; and
(e) Artist agrees to pay all royalties or fees owed to any person as a result of Artist’s uploading any Content to or selling any Content over the Bandecky website.
6. Downloading Content From Bandecky. Bandecky and Bandecky Artists make music files and other Content available to Members over the Bandecky website. Any Member’s right to access, stream or download any Content requires Member’s strict compliance with these General Terms and Conditions of Use. All Content, including but not limited to Content that is streamed, downloaded or copied using the Services is protected by the U.S. copyright laws and related laws of other jurisdictions, and is for Member’s personal use only. Member may not under any circumstances reproduce or distribute Content to third parties, or broadcast or perform the Content outside Member’s normal circle of family and social acquaintances. If Member streams, downloads or copies music files or other Content from the Bandecky website, Member hereby acknowledges and agrees that
(a) Member’s use of the music files or other Content is conditioned upon Member’s prior acceptance of these General Terms and Conditions and that any use of the music files or other Content other than in accordance with these General Terms and Conditions of Use may constitute copyright infringement;
(b) Member is authorized to use the music files or other Content only for Member’s personal, noncommercial use;
(c) Member may not reproduce, distribute, display publicly, perform publicly or create derivative works of any such music files or Content except as expressly provided by these General Terms and Conditions of Use;
(d) Member may not combine a music file with any video or image file to create a multimedia work;
(e) Member may not use a music file as a ringtone or ring back in connection with a phone or phone calls; and
(f) the download and copying of a music file or other Content does not transfer to Member any commercial or promotional use rights in the music file or Content.
7. Artist’s Licenses to Bandecky And Bandecky Members. Artist hereby acknowledges and agrees that by posting or publishing Content (including without limitation music files) on the Bandecky website Artist automatically grants the following licenses:
(a) to Bandecky, a non-exclusive, transferable, fully-paid, worldwide license to use, copy, perform, display, reformat, translate, excerpt (in whole or in part), sell and distribute such Content and to grant and authorize sublicenses of the foregoing, including, without limitation, the right to (i) reproduce and sell digital phonorecord deliveries of the Content to Members over the Bandecky website; and (ii) use any and all professional names, photos, trademarks, logos and biographical information of Artist, other artists, performers or bands, and other information Artist posts or publishes (including, without limitation, for advertising or promotional purposes).
(b) to Bandecky’s Members, a non-exclusive, non-transferable, fully-paid, non-revocable, worldwide license to use, copy, reproduce, perform and display such Content, expressly subject to these General Terms and Conditions of Use.
Artist may remove any or all of Artist’s Content from the Bandecky website at any time, subject to then-current Services Guidelines for removal of such Content. Once Artist’s Content has been removed, Bandecky will not continue to post, publish or make available the Content that Artist has removed from the Bandecky website, but the licenses granted above will survive such removal.
8. Bandecky’s Rights Over Content; Submissions of Ideas; Trademarks. All Content on the Bandecky website is the proprietary property of Bandecky or its licensors (including Bandecky Artists). Subject to the terms of this agreement, no Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written permission of Bandecky or its licensor. Except as otherwise set forth in this agreement, any use of the Content is strictly prohibited.
Bandecky reserves the right at any time to refuse, block access to or remove any Content for any reason at its sole discretion with or without notice. Bandecky reserves the right at its sole discretion to preserve or disclose any Content in order to (a) comply with legal process; (b) protect the rights, property or safety of any person; (c) enforce these General Terms and Conditions of Use; and/or (d) respond to claims or settle disputes over intellectual property or other ownership rights.
If you disclose any idea or related materials to Bandecky, you hereby acknowledge and agree that such ideas or materials shall not be subject to any obligation of confidentiality or expectation of compensation. By submitting the idea or related materials you are representing and warranting that (a) you waive any rights you may have in them; (b) the idea or related materials are wholly original with you and that no other person has rights in or to them; and (c) Bandecky is free to implement the idea and use the materials if it so elects, as provided by you or as modified by Bandecky, without obtaining permission or license from any third party.
All trademarks, logos, trade dress and service marks on the Bandecky website are trademarks or registered trademarks of Bandecky or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Bandecky.
9. No Liability For Uploaded Content. Bandecky does not own, create or control and generally does not pre-screen Content posted or published on the Bandecky website and therefore does not guarantee the integrity, quality, accuracy or completeness of any such Content. Bandecky will not be liable in any way for Content posted or published by third parties on the Bandecky website, including but not limited to errors or omissions in such Content or any damages of any kind resulting from the use of any such Content. In accessing or using the Bandecky website, you acknowledge and agree that you may be exposed to materials that may be deemed to be offensive, indecent or otherwise objectionable. You agree to access and use the Bandecky website and the Services at your sole risk. Bandecky employs no digital rights management on Content posted or published on the Bandecky website and you hereby acknowledge and agree that Bandecky will not be liable in any manner for any third parties’ use of your Content as a result thereof.
10. Links To Other Websites. The Bandecky website contains links to other websites. Bandecky is not responsible for the content, accuracy or opinions expressed in such websites, and Bandecky does not investigate, monitor or check such websites for accuracy or completeness. Inclusion of any linked website on or through the Bandecky website or the Services does not imply approval or endorsement of the linked website by Bandecky. If you decide to leave the Bandecky website and access these third-party sites, you do so at your own risk.
11. Restrictions on Use of Bandecky Website. The Bandecky website and Services may only be used for the purpose for which they are made available. The Bandecky website and Services are available for your personal use only. Your use of the Services and Bandecky website are expressly conditioned on numerous conditions listed below. PLEASE REVIEW THE FOLLOWING RESTRICTIONS CAREFULLY.
You agree that you will not use the Bandecky website or Services to:
(a) upload, post, email, otherwise transmit, or post links to anymaterial, or select any Artist or Member name or email address, that is unlawful, harmful, threatening, harassing, abusive, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of privacy or publicity rights, hateful, or racially, ethnically, sexually or otherwise objectionable;
(b) upload, post, email, otherwise transmit, or post links to any material that promotes illegal activity, including without limitation provides instructions for or induces illegal activity;
(c) upload, post, email, otherwise transmit, or post links to any material that exploits the images of children under 18 years of age or discloses personally identifying information belonging to children under 18 years of age;
(d) make any sexual request on behalf of a minor or make any sexual request of a minor;
(e) harm minors in any other way;
(f) collect or harvest email addresses or other contact information of other Bandecky website users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(g) use automated scripts to collect information from the website;
(h) use the Bandecky website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the website;
(i) impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
(j) 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;
(k) 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;
(l) use or attempt to use another Artist’s or Member’s account, without authorization from Bandecky;
(m) “stalk” or otherwise harass another;
(n) employ misleading email addresses or falsify information in the header, footer, return path, or any part of any communication, including emails, transmitted through the Services;
(o) upload, post, email, otherwise transmit, or post links to any material that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships (including, without limitation, inside information or proprietary and confidential information learned or disclosed due to employment relationships or under nondisclosure agreements);
(p) upload, post, email, or otherwise transmit, or post links to any material that facilitates hacking;
(q) upload, post, email, otherwise transmit, or post links to any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party, or contributing to inducing or facilitating such infringement;
(r) use automated means, including additional computers, software and scripts, to increase the number of plays of songs of any particular Artist;
(s) conduct your own contests and promotions or upload, post, email, otherwise transmit, or post links to any material regarding any raffle, contest or game requiring a fee by participants;
(t) sell, distribute, or make any commercial use of data obtained from the Bandecky website in a manner which could be expected to offend the person for whom the data is relevant;
(u) disrupt the normal flow of dialogue in a chat room;
(v) interfere with or disrupt the Services or networks or servers connected to the Services, or disobey any requirements, procedures, regulations or policies of networks connected to the Services;
(w) 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;
(x) upload, post, email, otherwise transmit, or post links to any material that is false, misleading, or designed to manipulate any equity, security, or other market;
(y) disobey any Bandecky employee or representative or interfere with any action by any Bandecky employee or representative to enforce these General Terms and Conditions of Use;
(z) access the Services after your account or access has been terminated by Bandecky;
(aa) fail to complete any transaction after submitting an order to purchase any goods or services over the Bandecky website, subject to the Service Guidelines governing such transactions, or submit any order to purchase goods or services over the Bandecky website where you do not intend to complete the transaction;
(bb) purchase any goods or services over the Bandecky website that you are prohibited from purchasing or possessing by any law applicable to you in your jurisdiction;
(cc) upload, post, email, otherwise transmit, or post links to any material, or act in any manner that is offensive to the Bandecky community or the spirit of these General Terms and Conditions of Use;
(dd) advertise, offer for sale, or sell any of the following items: (i) any firearms, explosives, or weapons; (ii) any items that are indecent or obscene, that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature, or are harmful to minors; (iii) any controlled substances or pharmaceuticals; (iv) any counterfeit or stolen items; (v) any dangerous items; (vi) any food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants; (viii) any alcoholic beverages; (viii) any tobacco products for human consumption, including, without limitation, cigarettes and cigars; (ix) any goods or services that do not, in fact, exist; (x) any registered or unregistered securities; (xi) any items that violate or infringe the rights of other parties; (xii) any items that you do not have the legal right to sell; and/or (xiii) any items where paying Bandecky any of the required transactional or listing fees would cause Bandecky to violate any law.
12. Use of Bandecky Flash Player. Bandecky may utilize a third party flash player to enable streaming of Content over the Bandecky website (“Bandecky Flash Player”). THE BANDECKY FLASH PLAYER IS MADE AVAILABLE SUBJECT TO THE CAPITALIZED LANGUAGE BELOW REGARDING DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY.
13. Disclaimer of Warranties. THE BANDECKY WEBSITE, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
BANDECKY DISCLAIMS ANY WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. The Bandecky website and the Services may be temporarily unavailable from time to time for maintenance or other reasons. Bandecky makes no warranty regarding the reliability or accessibility of Artist web pages or any storage facilities Bandecky offers. Bandecky 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, the Bandecky website or the Services. Bandecky is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any website, including injury or damage to any person’s computer related to or resulting from participating or downloading materials in connection with the Bandecky website or the Services. Bandecky will not be responsible for any loss or damage, including personal injury or death, resulting from any person’s use of the Services, the Bandecky website or any Content published on the Bandecky website. Bandecky disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. Bandecky disclaims any responsibility or liability for any harm resulting from downloading or accessing any information or material through the services, including, without limitation, for harm caused by viruses or similar contamination or destructive features. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BANDECKY WEBSITE AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH MATERIAL.
BANDECKY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL IN OR OBTAINED THROUGH THE SERVICES. Bandecky is not responsible for any incorrect or inaccurate Content posted or published on the Bandecky website or in connection with the Services, including Content posted or published by Artists or Members. Bandecky is not responsible for the conduct, whether online or offline, of any user of the Bandecky website. TO THE FULLEST EXTENT PERMITTED BY LAW, BANDECKY DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE BANDECKY WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE BANDECKY WEBSITE, AS WELL AS FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE BANDECKY WEBSITE OR THROUGH LINKS PROVIDED ON THE BANDECKY WEBSITE.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
14. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BANDECKY OR ITS LICENSORS SHALL NOT BE LIABLE TO YOU RESULTING FROM YOUR USE OR MISUSE OF AND RELIANCE ON THE SERVICES, CONTENT OR OTHER MATERIALS PROVIDED ON THE BANDECKY WEBSITE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF BANDECKY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICES, CONTENT OR MATERIALS, FROM INABILITY TO USE THE SERVICES, CONTENT OR MATERIALS, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE BANDECKY WEBSITE, PRODUCTS AND SERVICES RECEIVED THROUGH ANY LINKS PROVIDED ON THE BANDECKY WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE BANDECKY WEBSITE. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS AND SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, BANDECKY. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
SUCH LIMITATION OF LIABILITY SHALL ALSO APPLY TO ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF REGISTRATION INFORMATION, ARTIST PAGES OR OTHER CONTENT STORED THROUGHOUT BANDECKY.
BANDECKY OR ITS LICENSORS SHALL NOT BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
15. Disclaimer Regarding Third Party Content. Bandecky offers access to numerous third party web pages and content available over the Internet. In the overwhelming majority of instances, including, but not limited to, websites contained within a directory of links, Bandecky has no control whatsoever over the content of such websites. In other instances, including, but not limited to, web pages hosted on Bandecky or provided to Bandecky by third parties, Bandecky may set guidelines for what may appear on such web pages and may engage in certain screening, but generally exercises no control over the content of such web pages and is unable to police all such content. Third party content accessible through Bandecky from such sources is developed by people over whom Bandecky exercises no control. Similarly, Content Bandecky hosts is posted by third parties, and, with the exception of certain random screening functions, Bandecky cannot and does not screen such web pages before they are made accessible to other users of Bandecky. Accordingly, neither Bandecky nor its licensors assume any responsibility for the content of any website linked to the Bandecky website or in any web page hosted for a third party within the Bandecky website. In instances where Bandecky does review the websites that are displayed in directories, indices, and/or references, or where Bandecky makes available directories, indices, and/or references of websites compiled by third parties, the content located at such websites was developed third parties, and review of such websites by Bandecky, if any, is narrowly limited to that which is necessary for compiling the particular set of links.
16. Advertisers and Content Linked to Bandecky Website. Bandecky or third parties may provide links to other websites or resources located on the World Wide Web by allowing you to leave Bandecky to access third-party material or by bringing the third party material into this site via “inverse” hyperlinks and framing technology. Bandecky has no control over such websites and resources. You acknowledge and agree that Bandecky is not responsible for the availability of such external websites 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 websites or resources. You further acknowledge and agree that Bandecky 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 website or resource.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Bandecky website or Services, 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 Bandecky shall not be responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such advertisers on the Bandecky website and your use of the Services.
17. No License to Intellectual Property of Bandecky and Others. Except as expressly provided, nothing within any of the Services shall be construed as conferring any license of or to any of Bandecky’s or any third party’s intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain Content available through and used to operate Bandecky and the Services is protected by copyright, trademark, patent, or other proprietary rights of Bandecky and its affiliates, licensors (including, without limitation, Artists), and service providers. Except as expressly provided to the contrary, you agree not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available by Bandecky in connection with the Services. You agree not to hold yourself out as in any way sponsored by, affiliated with, or endorsed by Bandecky or any of Bandecky’s affiliates or service providers. You agree not to defame or disparage Bandecky, the trademarks or service marks of Bandecky or any aspect of Bandecky or the Services. You agree not to use any of the trademarks or service marks or other Content accessible through Bandecky for any purpose other than the purpose for which such Content is made available to you by Bandecky. You agree not to adapt, translate, modify, decompile, disassemble, or reverse engineer the Services or any software or programs used in connection with the Services or Bandecky.
18. Linking to Bandecky; Use of Bandecky Logo. Bandecky offers a non-assignable, non-transferable, and non-exclusive license to Artists to link to the Bandecky website using Bandecky logos, subject to the following provisions. Bandecky logos may be placed on an Artist website for the sole purpose of creating a link to Bandecky and allowing users of the Artist’s website to access the Services on Bandecky. Bandecky logos may not be used for any other purpose, including without limitation to suggest sponsorship by, or affiliation with, or endorsement by Bandecky. Bandecky logos may not be used to disparage Bandecky, its products or services, or in a manner that in Bandecky’s judgment may diminish or otherwise damage Bandecky’s good will in the Bandecky logos. Bandecky logos may only be used in the exact size, shape, colors, design, and configuration as provided by Bandecky. Bandecky logos may not be altered in any manner. Bandecky logos must appear by themselves, with reasonable spacing (at least the height of the logo) between each side of the applicable logo and other graphic or textual elements. By using any Bandecky logo you acknowledge that Bandecky has exclusive rights to the logo, and that all good will generated through your use of the logo will inure to the benefit of Bandecky. If you use Bandecky logos, you must include appropriate attribution, for example: “Bandecky® is a registered trademark of Bandecky, Inc.” Bandecky reserves the right to revoke this license or to alter its terms from time to time, for any or no reason, with or without notice. Bandecky reserves the right to take legal action , including without limitation seeking injunctive relief, regardingany use that does not conform to these provisions.
19. Copyright, Trademark and Patent Notices. All other marks that appear throughout the Services belong to Bandecky, the Artists featured on Bandecky, or the respective owners of such marks, as applicable, and are protected by U.S. and international copyright and trademark laws. Any use of any of the marks appearing throughout the Services without the express written consent of Bandecky or the owner of the mark, as appropriate, is strictly prohibited.
20. Intellectual Property Infringement Claims. It is the policy of Bandecky to respond expeditiously to claims of intellectual property infringement. Bandecky will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, Bandecky will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. Bandecky will terminate access for Members or Artists who are repeat infringers. Notices of claimed infringement should be directed to:
General Counsel
169 Edgewater Ln.
Paso Robles, CA 93446
E-mail: info@Bandecky.com
Please put “Notice of Infringement” in the subject line of all such notifications. When Bandecky removes or disables access to any material claimed to be infringing, Bandecky may attempt to contact the person who has posted such material in order to give that person an opportunity to respond to the notification, although Bandecky makes no promise to do so. Any and all counter notifications submitted by that person will be furnished to the complaining party. Bandecky will give the complaining party an opportunity to seek judicial relief in accordance with the DMCA before Bandecky replaces or restores access to any material as a result of any counter notification.
21. Storage. Many features of Bandecky store information on behalf of Artists or Members. Examples include, but are not limited to audio files, touring information, chat and other postings. Bandecky reserves the right, in its sole discretion, to limit the amount of storage space available to you or to delete materials stored for an excessive period while your account has been inactive.
22. Indemnity and Release. By using the Bandecky website you agree to indemnify Bandecky, Inc., and its officers, employees, licensors, and licensees and to hold them harmless from any and all claims and expenses, including attorney’s fees, arising from your use of the Bandecky website, your use of the Services, or your submission of ideas and/or related materials to Bandecky or from any person’s use of any account or password you maintain with Bandecky, regardless of whether you authorize such use. By using Bandecky and the Services, or submitting any ideas and/or related materials to Bandecky, you hereby agree to release Bandecky and its parents, subsidiaries, affiliates, officers, and employees from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to such disputes and/or to the Services or to any disputes regarding use of ideas and/or related materials submitted to Bandecky.
YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASES. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
23. Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, or relating to, your use of Bandecky or the Services must be filed within one (1) year after such claim or cause of action arises, or forever be barred.
24. Arbitration, Governing Law And Forum For Disputes. Unless expressly stated to the contrary elsewhere within the Services, all legal issues arising from or related to the use of the Services shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of California applicable to contracts entered into and wholly to be performed within said state. Any controversy or claim arising out of or relating to these General Terms and Conditions of Use or any person’s use of the Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Luis Obispo, California, and judgment on the arbitration award may be entered into in any state or federal court in California having jurisdiction thereof. Any party seeking temporary or preliminary injunctive relief may do so in any state or federal court in California having jurisdiction thereof. Except as set forth above, the state and federal courts of California shall be the exclusive forum and venue to resolve disputes arising out of or relating to these General Terms and Conditions of Use or any person’s use of the Services. By using the Services and thereby agreeing to these General Terms and Conditions of Use, users consent to personal jurisdiction and venue in the state and federal courts in California with respect to all such disputes.
25. Export Controls. Certain software and related documentation or technical information available through Bandecky is subject to applicable laws and regulations of the United States pertaining to export controls. By using such software or related documentation or technical information, you represent and warrant that you are not located in, or under the control of, or a national or resident of any embargoed country or any country on the U.S. Department of Commerce's Table of Denial Orders. You agree not to export or re-export such software or related documentation or technical information directly or indirectly to any countries that are subject to United States export restrictions.
26. Miscellaneous. This agreement sets forth the entire agreement between you and Bandecky pertaining your use of the Bandecky website and the Services. Bandecky reserves the right, at its sole discretion, to change, modify, add, or delete portions this agreement at any time without further notice. If Bandecky does this, it will post the changes to this agreement on this page and will indicate at the top of this page the new effective date. Your continued use of the Services or the Bandecky website after any such changes constitutes your acceptance of the revised agreement. If you do not agree to comply with this agreement or any future revised agreement, do not use or access the Services or the Bandecky. It is your responsibility to regularly review this agreement. If any provision of this agreement is held invalid or unenforceable, such provision will be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this agreement will continue in full force and effect. Bandecky’s failure to exercise any right or provision of this agreement will not constitute a waiver of such right or provision. These General Terms and Conditions of Use constitute the entire agreement between the parties with respect to the subject matter contained herein and supersede any other agreements, proposals and communications, written or oral, between Bandecky’s representations and you with respect to the subject matter hereof except that any Services Guidelines and other terms and conditions located on any individual Bandecky web page are incorporated herein by reference to the extent they do not conflict with these General Terms and Conditions of Use. To the extent that any other terms and conditions or terms of service conflict with these General Terms and Conditions of Use, those other provisions shall control with respect to the use of the particular web page and any Services available on or through the web page on which those other provisions may be found. The section headings used in this agreement are for the convenience and reference of the parties only, and will not be deemed a part of, or utilized in interpreting this agreement.
You acknowledge and agree that you and Bandecky are independent contractors under these General Terms and Conditions of Use, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to these General Terms and Conditions of Use has authority to enter into agreements of any kind on behalf of the other and neither party shall be considered the agent of the other. You agree not to resell, assign, sublicense, otherwise transfer, or delegate your rights or obligations under these Terms and Conditions without prior express written authorization of Bandecky. These General Terms and Conditions of Use shall continue in effect for as long as you use the Services, unless specifically terminated earlier by Bandecky. All provisions of these General Terms and Conditions of Use that impose obligations continuing in their nature shall survive termination of these Terms and Conditions.
27. Violations Of Terms And Conditions. Should you violate these General Terms and Conditions of Use or any other rights of Bandecky, Bandecky reserves the right to pursue any and all legal and equitable remedies against you, including, without limitation, terminating any and all of your accounts on any and all of the Bandecky websites.
If you are aware of any violations of these General Terms and Conditions of Use, please report them to:
Bandecky.com
c/o Bandecky Abuse
169 Edgewater Ln.
Paso Robles, CA 93446
I HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
