Last Updated: November 12, 2013
TuneStub may amend these Terms at any time in its sole discretion, effective upon posting the amended Terms at the domain or subdomains of http://www.tunestub.com where the prior version of the Terms was posted, or by communicating these changes through any written contact method we have established with you.
As used herein, (i) “Services” means TuneStub’s proprietary full-service ticketing system for the advertisement, promotion, purchase and sale of tickets to live events, (ii) “User” means anyone who accesses, browses, crawls, scrapes, or in any way uses the Site (including a Supplier, as defined below), and (iii) “Supplier” means any individual or entity using the Services to sell tickets to live events that such individual or entity promotes, runs or otherwise sells tickets to (the “Supplier Events”).
1.0 TERMS APPLICABLE ONLY TO USERS
In order to use the Site, a User must be at least eighteen (18) years old and have the requisite power and authority to enter into these Terms. All others are prohibited from using the Site. Any User using the Site on behalf of a person, company, entity or organization must be an authorized representative with the authority to bind the person, company, entity or organization to these Terms (which authority such User hereby exercises).
1.2 License Grant
Subject to acceptance and continuing adherence to these Terms, Company provides to Users a limited, non-exclusive, non-transferable license to access and use the Site. Except for the foregoing limited license, and except for any other rights expressly granted herein, no other rights to the Site or Services are granted to Users, and the Site and Services are and will remain the sole and exclusive property of Company and its licensors, if any, whether the Site and Services are separate or integrated with any other products, services, deliverables or websites.
1.3 User Account
To use some of the features of the Site, a User may be required to create an account and provide information about himself or herself, or his or her venue (a “User Account”). Each User agrees to (i) provide accurate, current and complete information as prompted by the registration from, and (ii) maintain and update the information to keep it accurate, current and complete.
As part of the registration process, each User will be asked to select a username and password. Company may refuse to grant a username if it determines, in its sole discretion, that such username (i) impersonates someone else, (ii) is or may be illegal, (iii) is or may be protected by trademark or other proprietary rights law, (iv) is vulgar or otherwise offensive, or (v) may cause confusion. Each User is responsible for maintaining the confidentiality of his or her User Account password. Company reserves the right to close a User Account at any time for any or no reason. These Terms will remain in full force and effect for the entirety of a User’s use of the Site. In the event of any termination of any membership, service or feature, a User will still be bound by his or her obligations under these Terms, including any indemnifications, warranties and limitation of liability. Nothing in these Terms will be deemed to confer any third- party rights or benefits.
Company is not liable for any harm caused or related to the theft or misappropriation of a username or password, disclosure of a username or password, or a User’s authorization of anyone else to use his or her username or password. All Users agree to notify Company immediately of any unauthorized use of his or her User Account. If a User has reason to believe that his or her User Account is no longer secure, such User must promptly change his or her password by visiting http://www.tunestub.com and immediately notify Company of the problem by email at email@example.com.
1.4 User Responsibilities
All Users agree (i) to abide by all applicable local, state, national, and international laws and regulations; (ii) not to use the Services or the Site for illegal purposes; (iii) not to impersonate any person or entity or engage in any fraudulent business practice; (iv) not to display or transmit any unlawful, harmful, hateful, racially, ethnically or objectionable material of any kind; (v) not to distribute in any way files that contain viruses, corrupted files, or any other similar programs; and (vi) not to interfere or disrupt the Site’s functionality. All Users further agree not to transfer or resell their use of or access to the Site or Services to any third party.
Users are solely responsible for their actions in using the Services or the Site, and the actions of their respective employees and agents that use the Services or the Site on their behalf, including without limitation to sell or purchase tickets and for related communications with other Users. Users assume all risk in dealing with other Users, and any dispute between Users must be resolved directly between the applicable Users.
2.0 TERMS APPLICABLE ONLY TO TICKET PURCHASERS
If you wish to purchase products or services described on the Site (each such purchase, a “Transaction”), you will be asked by Company or the third party provider of the product or service to supply certain information applicable to your Transaction, including without limitation credit card and other information. You agree that all information that you provide to Company or such third party provider will be accurate, current and complete. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. By submitting such information, you grant Company the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgement or completion of any Transaction.
All purchases are subject to Company’s service fees and charges. You agree that all purchases made by you on the Site cannot be exchanged and are non-refundable unless expressly stated otherwise, or otherwise provided by the Supplier or by applicable law. You will be responsible for paying all applicable taxes in connection with your purchase of any tickets. You may not be able to use tickets purchased on the Site if you do not follow our Purchase Policy, located at http://www.tunestub.com/purchasepolicy.cfm and incorporated into these Terms by reference.
You acknowledge that Company and its partner websites have no control over the quality, accuracy, safety or legality of the products or services advertised. NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, COMPANY SHALL HAVE NO LIABILITY FOR ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM OR IN RELATION TO ANY TRANSACTION.
3.0 TERMS APPLICABLE ONLY TO SUPPLIERS
3.1 Order Forms
These Terms are incorporated by reference into each order form executed by Supplier and Company, pursuant to which the Supplier receives the right to access and use the Services (the “Order Form”). These Terms and the Order Form together comprise a binding written agreement between Supplier and Company, effective as of the date of mutual execution of the Order Form by Supplier and Company (the “Agreement”). In the event there is a conflict between these Terms and the Order Form, the Order Form shall govern, provided however that the fact that a term or provision appears in the Order Form but not in these Terms, or in these Terms but not in the Order Form, shall not be deemed to be a conflict for purposes of this sentence.
3.2 Website for Services
Company will make the Services available to Supplier and its ticket purchasers as specified on the Order Form through the Site and/or through such other website or URL that Supplier identifies in writing and Company approves for the sale of tickets to Supplier Events (the “Supplier Website”).
The initial term of the Agreement is given on the top of the Order Form. The Order Form will automatically renew at the end of the initial term for successive one-year periods, unless either party provides the other party with written notice of its intention not to renew at least thirty (30) days before the end of the then-current term. “Term” means the initial term and any and all extensions thereto.
Either party may terminate an Order Form if (i) the other party breaches any material term or condition and fails to cure within thirty (30) days written notice, or (ii) the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership. Company may terminate an Order Form at any time and for any reason (including no reason) by providing Supplier with at least thirty (30) days prior written notice of termination.
Upon termination of the Agreement, all of Supplier’s rights to access and use the Services will terminate, and Supplier will promptly (i) return to Company any and all equipment provided by Company under the Agreement and (ii) delete or otherwise remove any and all files relating to the Services from Supplier’s computers and storage devices. In the event that any Supplier Events available on the Service have not occurred as of the effective date of termination and such Supplier Events will occur within sixty (60) days after the effective date of termination (the “Upcoming Supplier Events”), then the Agreement will remain in effect until all such Upcoming Supplier Events have occurred, or until Supplier notifies Company in writing that Supplier has made alternative ticketing arrangements for all such Upcoming Supplier Events. Supplier will be responsible for making alternative ticketing arrangements for any Supplier Events that will not occur within sixty (60) days after the effective date of termination.
3.5 Optional Premium Services
Company provides the following optional premium services for Suppliers when specified on an Order Form.
- Designing and Programming of Custom Website:
If specified on the Order Form, Company will create a custom Company website with a content management system to allow updates without programming ("Custom Website"). Company will collaborate with Supplier to schedule delivery dates for Supplier to provide Custom Website design and details. Company is not responsible for delays resulting from any failure by Supplier to comply with the agreed upon delivery dates. Company will spend up to twenty (20) hours creating the Custom Website, during which Company will (i) request a website design questionnaire from Supplier, (ii) provide mockups of a web design based upon Supplier requests, and (iii) do up to 4 rounds of unlimited revisions on design based on Supplier feedback. Company reserves the right to determine that a Custom Website will require more than twenty (20) hours of work to create, and Supplier will be notified and charged $150 per hour fee for the additional time to be spent creating the Custom Website. Company will program and will host the Custom Website, as well as provide email hosting, and setup, and technical maintenance and support for the website.
- Mobile Optimization Service:
The Mobile Optimization Service feature creates a mobile optimized buying experience, including large buy buttons, reduced content and mobile navigation, when on the Custom Website on mobile or smart phone devices such as iPhone, Android, and Blackberry devices for easier mobile purchasing. This feature may be enabled at any time by written request to Company and will be pro-rated for any partial month usage, provided however that this Mobile Optimization Service is only available for the Custom Website.
- Booking Calendar:
The booking calendar allows a Supplier to track bookings, holds, contracts, and talent communications on a booking calendar platform. It also allows Suppliers to easily (i) put shows on sale from a hold, (ii) confirm acts, (iii) manage contracts, riders, technical advances and other documents for the show, and (iv) allow multiple bookers and employees to manage notes and information about a show.
- Email Blast Software:
The email blast software is a full service product with top of the industry deliverability and analytics that eases a Supplier’s ability to communicate with customers. It allows a Supplier to (i) use customer database tools to create groups of customers to send emails, (ii) use template tools to create a custom look and feel, and (iii) track bounces, open rates, clicks, and more through the dashboard.
- Branded Emails and Tickets with Ad Space:
If specified on the Order Form, Company will design branded emails and tickets to be emailed to Supplier’s customers with every purchase. Supplier’s brand will be front and center, thus keeping the brand in all ticketholders’ minds. Further, Supplier will have an easy upload system that allows the placement of two (2) ad units on every print-at-home ticket. Supplier may use the space to promote future shows, holiday party bookings, gift cards, drink specials, or Supplier may even sell the ad space.
- Gift Card Integration:
If specified on the Order Form, Company will set up and integrate a gift card program into Supplier’s ticketing system. Supplier may then (i) sell gift cards online and in person, (ii) track balances, (iii) redeem cards for tickets, and (iv) issue refunds to gift cards instead of giving cash. Contact us for approved gift card vendors. Gift card company fees are not included.
ANY ANY EQUIPMENT PROVIDED BY COMPANY IS PROVIDED "AS IS" WIHTOUT WARRANTY OF ANY KIND, AND COMPANY DISLCAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLDUING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, OR FITNESS FOR A PARTICULAR PURPOSE. During the Term, Supplier may request, and ElectroStrub may provide to Supplier, the equipment below for use with the Services. Equipment is available on a purchase, lease or rental basis. All leased or rented equipment must be returned to Company within thirty (30) days of the expiration of such lease or rent. Please contact your account manager for details. If any equipment is lost, stolen, damaged or otherwise returned in a condition that is not comparable to the condition it was received in, Supplier will be responsible for the cost of the missing or damaged items. Company reserves the right to cancel any provision of equipment to Supplier if Supplier fails to pay fees due under the Agreement.
|Credit Card Swipers||$50|
3.7 Additional Services
If Supplier requires or desires any development, support or consulting services related to the Services but not otherwise included under the Agreement (the “Additional Services”), Supplier will provide Company with a written request for the desired Additional Services. Should Company determine in its sole discretion to provide such Additional Services to Supplier, Supplier and Company will negotiate in good faith regarding a written statement of work setting forth the Additional Services to be provided and the applicable fees and expenses for such Additional Services (the “Statement of Work”). If no Statement of Work has been signed within thirty (30) days after receipt by Company of Supplier’s written request for Additional Services, neither party shall be obligated to continue such negotiations, and Company will have no obligation to provide the Additional Services. In addition, unless the parties should expressly agree otherwise in writing, all Additional Services will be provided on a time-and-materials basis at Company’s then-current hourly rates. The hourly rates for Company personnel are available to Supplier upon request. Upon execution of each Statement of Work by the parties, such Statement of Work will be sequentially numbered, dated, and incorporated into the Agreement as an attachment.
3.8 Supplier Responsibilities
Where applicable, Supplier agrees to (i) provide accurate, current and complete information about all past, present, and future Supplier Events, lineups, and artists; (b) maintain and update venue information to keep it accurate, current, and complete; (c) post material suitable for viewing by users eighteen (18) and over; (d) allow Company the explicit right to use Supplier’s copyrights, trademarks, service marks, trade names, logos, and other intellectual and propriety rights for the purpose of providing the Services and promoting Supplier’s business anywhere on the Site Company deems appropriate and in all Company created media, including social media networks (such as Facebook, Twitter, YouTube, and MySpace) and all content and functionality available through the tunestub.com domain name; (e) allow Company to sell tickets to Supplier Events held at Supplier’s venue(s) or any other venue(s) or location(s) at which Supplier’s business conducts a Supplier Event; (f) refrain from engaging in any conduct that would unfairly prevent any person who purchased tickets to a Supplier Event from the Site or through the Services from attending the Supplier Event for which he or she purchased tickets, and agree to treat such individual in the same manner as if he or she purchased tickets directly from Supplier; (g) refrain from engaging in any conduct that would harm, infringe, destroy, or otherwise negatively affect Company's relationship with its users including individuals who purchase tickets to Supplier Events; (h) accept Company's roster of individuals who purchased a ticket to Supplier Events and provide those individuals with access to Supplier Events; (i) allow Company to place information about Supplier Events anywhere on the Site it deems appropriate; (j) update and keep accurate any payment information necessary for Company to provide Supplier’s business with compensation for Supplier Event ticket sales; (k) allow information about Supplier Events to be embedded by other Users on other websites; and (l) allow only its current employees to have access to Supplier’s User Account. Supplier acknowledges that, if any information provided by Supplier is untrue, inaccurate, not current or incomplete, Company reserves the right to terminate this Agreement and Supplier’s use of the Services.
Supplier acknowledges that it is solely responsible for the usefulness and adequacy of all data, materials and content it provide for the Services or for use on the Site (the “Supplier Content”). Supplier represents and warrants that the Supplier Content is accurate and current, and that provision and/or use of the Supplier Content hereunder does not violate or infringe the intellectual property, privacy or publicity rights of any third party, and that all placements of Supplier Content has been approved for Company’s use. Supplier shall defend, indemnify and hold Company harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Company or which are agreed by Company to be paid by way of settlement or compromise, arising out of any breach of the foregoing representation and warranty or any violation of applicable law by Supplier. Supplier shall not be entitled to settle or compromise any such claim made against Company without Company’s prior written consent, such consent not to be unreasonably withheld. Supplier grants Company a limited, non-exclusive right to use the Supplier Content (including copyright, trademark, patent, publicity or other rights) for Company to operate the Services. Supplier shall have exclusive control of the Supplier Content which relates to the live event, venue or artist, including but not limited to any pictures and programs. Company shall cooperate with Supplier to ensure that the Supplier Content is accurate.
3.9 Service Fees and Refunds
Company will collect a per-ticket fee for each ticket sold using the Services. Suppliers will have the ability, through the Services (or by request to Company), to issue refunds both on a per-ticket purchaser basis and to all ticket purchasers for a Supplier Event (e.g., where a Supplier Event is canceled). Refunds on a per-ticket purchaser basis will include a refund of any service fees paid by such ticket purchaser, and there will be no charge for refunds to the Supplier. If a show is cancelled and all ticket purchasers are refunded, Company will have the right to charge Supplier the per ticket service fee for work performed on all tickets sold and refunded.
3.10 Price and Payment
Supplier agrees to the service fees and other charges (the “Fees”) as stated on the Order Form. Supplier is responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on Services provided under the Agreement, excluding taxes based on Company's net income. Supplier may choose to use either Company’s merchant account or its own merchant account.
Supplier is solely responsible for providing and maintaining accurate address and other contact information as well as payment information. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from any payment due to Supplier or invoiced to Supplier. Company may change its pricing and/or payment structure at any time. If Supplier disputes any payments or any invoice, Supplier must notify Company in writing within thirty (30) days of any such payment or invoice; failure to so notify Company shall result in the waiver by Supplier of any claim relating to any such disputed payment or invoice. Payments and invoices shall be calculated solely based on records maintained by Company. No other measurements or statistics of any kind shall be accepted by Company or have any effect under the Agreement.
- Terms applicable only to use of Supplier’s merchant account:
Where Supplier is using its own online merchant account (and not Company’s merchant account), Supplier will use either PayPal’s Payflow Pro or Authorize.net as its online payment gateway solution (the “Gateway”), and will notify Company promptly following execution of the Agreement of the Gateway that Supplier has elected to use. For Supplier’s online merchant account, Supplier may choose any reputable merchant account provider, and agrees to notify Company of Supplier’s selected merchant account provider as soon as possible after execution of the Agreement.
Supplier will be responsible for collecting payment from ticket purchasers buying tickets to Supplier Events using the Supplier Website and in-house sales, such as phone orders and walkups using credit cards or cash. Company will be responsible for collecting payment from ticket purchasers buying tickets to Supplier Events using the Site. Company will configure the Services to direct ticket purchasers to Supplier’s online merchant account for payment processing through an approved Gateway, and Company will invoice Supplier on a monthly basis for the fees due to Company. All invoices will be due and payable upon receipt by Supplier, and Supplier will begin to incur late fees (equal to the lesser of 1.5% per month from the due date until the date of payment, or the maximum allowable by law) for any invoice that is not paid in full within thirty (30) days after the date of invoice.
- Terms applicable only to use of Company’s merchant account:
If the Supplier elects to use Company’s merchant account (and not Supplier’s merchant account), Company will be responsible for collecting payments from all ticket purchasers using the Supplier Website, the Site, and in-house credit card sales such as phone orders and walkups using credit cards. Supplier will be responsible for collecting in-house cash sales.
Supplier shall receive a payment related to the number of valid tickets sold on the Site. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to Supplier shall be sent by Company within approximately ten (10) business days after the end of the calendar week (Monday through Sunday) in which the Supplier Event(s) occurs if the applicable Supplier earned a balance of $50 or more. Payments are rolled over into the following ten (10) business days pay period if the threshold is missed. However, all payments may be distributed at the end of the month even if the threshold limit is not reached. In the event the Agreement is terminated, Company shall pay Supplier’s earned balance to Supplier within approximately thirty (30) days after the end of the calendar week in which the Agreement is terminated. In no event however shall Company make payments for any earned balance less than $1.00.
Notwithstanding the foregoing, Company shall not be liable for any payment based on: (i) tickets for which an inaccurate or invalid credit card number, bank account, or any other form of payment is used which results in Company being unable to collect payment from another for the purchase of the ticket; (ii) Supplier Event(s) that were cancelled due to no fault of Company; (iii) any breach of the Agreement by Supplier. Company reserves the right to withhold payment or charge back Supplier’s account due to any breach of the Agreement by Supplier, pending Company’s reasonable investigation of the breach.
Supplier acknowledges and agrees that Company may should it decide to do so, without further notice to Supplier, contribute to a charitable organization selected by Company all funds, payments and other amounts held by Company and that are due to Supplier (if any), but which Company is unable to pay or deliver to Supplier because Supplier’s payment information is inaccurate or invalid, or Supplier’s User Account is inactive. “Inactive” means that, based on Company’s records: (i) for a period of twelve (12) months or more Supplier has not logged into Supplier’s User Account or accepted funds, payments or other amounts Company has attempted to pay or deliver to Supplier, and (ii) Company has been unable to reach Supplier, or has not received adequate payment instructions from Supplier, after contacting Supplier at the address shown in Company’s records.
3.11 Press Releases; Customer Lists
No Supplier may issue any press release or other public statement regarding the existence, terms or subject matter of any agreement or relationship with Company without Company's prior written consent. All Suppliers acknowledge and agree that Company may use such Supplier's organization's name and logo, and may use images that are posted on the Site to identify such Supplier as a customer of Company on Company's website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as part of a list of Company's customers for use and reference in Company's corporate and marketing literature.
3.12 Business Practices
Supplier covenants that it will: (a) conduct business in a manner that reflects favorably on Company and its good name, good will, and reputation; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Company or the public; (c) make no false or misleading representations with regard to Company or its Services; (d) make no representations, warranties or guarantees to third parties with respect to the specifications, features, or capabilities of Company's services; and (e) not represent that it is acting as an agent of or otherwise on behalf of Company.
4.0 PROPRIETARY RIGHTS
4.2 User Content
“User Content” means any data, materials or content that Users post, submit or transmit to or through the Site, such as ratings, reviews, complements, invitations and information that display as part of a User Account profile. Company may use User Content in a number of different ways, including displaying it on the Site, reformatting it, incorporating it into other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms ("Other Media"). As such, all Users (i) irrevocably grant Company permission to use their User Content for any purpose, (ii) irrevocably grant the Site’s Users and the Users of any Other Media the right to access their User Content in connection with their use of the Site and/or any Other Media, and (iii) irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to their User Content.
Each User alone is responsible for his or her User Content, and assumes all risks associated with the User Content, including anyone's reliance on its accuracy, completeness or usefulness, or any disclosure of information in the User Content that makes the User personally identifiable. All Users (i) represent that he or she owns, or has the necessary permissions to use and authorize the use of, his or her User Content as described herein, and (ii) agree to defend, indemnify and hold Company harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Company or which are agreed by Company to be paid by way of settlement or compromise, arising out of any breach of the foregoing representation and warranty.
Company may remove or reinstate User Content from time to time at its sole discretion. For example, Company may remove a review if it believe the review violates its content guidelines. Company has no obligation to retain or provide a User with copies of User Content, nor does Company guarantee any confidentiality with respect to User Content.
Company and its licensees may display advertisements and other information adjacent to or included with User Content on the Site and Other Media. Users are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to any User.
4.3 No Transfer
All Users acknowledge that, except for the User Content, Supplier Content and Third-party Content (as defined below), Company or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Site and the Services. All Users expressly acknowledge that nothing in these Terms or in the course of a Transaction shall operate in any way whatsoever to transfer any intellectual property rights from Company or its licensors to any User.
4.4 Restrictions on Use
All Users agree not to (i) restrict or inhibit any other User from using the Site, including, without limitation, by means of "hacking" or defacing any portion of the Site; (ii) use the Site or Services for any unlawful purpose; (iii) express or imply that any statements a User makes are endorsed by Company, without Company's prior written consent; (iv) transmit any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes Company's or any third party's intellectual property or other rights; (v) transmit any material, non-public information about persons or companies without the authorization to do so; (vi) transmit any trade secret of any third party; (vii) transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by Company), (viii) engage in spamming or flooding; (ix) transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature; (x) modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site; (xi) remove any copyright, trademark or other proprietary rights notices contained in the Site; (xii) "frame" or "mirror" any part of the Site without Company's prior written authorization; (xiii) link to any page of or content on the Site other than the URL located at www.tunestub.com; (xiv) use any robot, spider, offline reader, website search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents without Company's prior written consent; (xv) harvest or collect information about Site visitors or members without their express consent; (xvi) take any action that imposes an unreasonable or disproportionately large load on Site infrastructure; (xvii) access, reload or "refresh" transactional event or ticketing pages, or make any other request to transactional servers, more than once during any three-second interval; (xviii) request more than 1,000 pages of the Site in any twenty-four hour period, whether alone or acting in concert with a group of individuals; (xix) use any passcode or password, regardless of whether or not such password or passcode is unique, to participate in a presale or other offer on the Site if not the original recipient of such passcode or password (i.e., if a User did not receive the passcode or password from Company, or from the fan club or other organization with whom Company is working to enable such presale or offer) or if User’s participation in such presale or other offer is inconsistent with such presale's or offer's terms); (xx) post content that is patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or post content that could be harmful to minors; (xxi) harass or advocates harassment of another person; (xxii) promote information that User knows is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (xxiii) display pornographic or sexually explicit material of any kind; (xxiv) provide material that exploits people under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (xxv) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (xxvi) solicit passwords or personal identifying information for commercial or unlawful purposes from other Users; (xxvi) engage in commercial activities without Company’s prior written consent, such as contests, sweepstakes, barter, advertising, and pyramid schemes; or (xxvii) infringe Company's or any third party's copyright, patent, trademark, trade secret, rights of privacy or publicity or other proprietary or intellectual property rights of any nature.
Notwithstanding the foregoing, Company grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Company reserves the right to revoke these exceptions either generally or in specific cases;
4.5 Third-party Links and Content
The Site may contain links to third-party websites that are not owned or controlled by Company. Company has no control over, and assumes no responsibility for, the content, privacy policies or practices of any third party websites. In addition, Company will not and cannot censor or edit the content of any third-party site. By using the Site, Users expressly relive Company from any and all liability arising from use of any third-party website.
All Users understand and agree that any third-party data, content, materials or software (“Third-party Content”) which may be published on the Site or otherwise made available through the Site may be subject to third party licenses, that such licenses may be altered or revoked at any time by the applicable third party licensor, and that removal or alteration of Third-party Content shall not constitute a breach of these Terms.
4.6 Copyright Dispute Policy
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If a User believes in good faith that materials hosted by Company infringes his or her copyright, such User (or such User’s agent) may send Company a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Company to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Additionally, if a User believes in good faith that a notice of copyright infringement has been wrongly filed by Company against such User, the DMCA permits the User to send Company a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Site should be sent to CrowdTorch LLC Attn: Customer Service, 11833 Mississippi Avenue, Suite 201, Los Angeles, California 90025, Main: (800) 927-0939, Fax: (800) 807-3109, or email us at firstname.lastname@example.org. Company suggests that a User consults his or her legal advisor before filing a notice or counter-notice. Also, all Users should be aware that there can be penalties for false claims under the DMCA.
5.0 GENERAL TERMS
THE SITE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
5.2 Limitation of Liability
Company’s liability to any User or Supplier, or affiliates, registered agents, assignees, or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorney’s fees or costs arising with respect to the Services, the Site or these Terms shall be limited to the amount of such User’s or Supplier’s actual direct damages, not to exceed (in the aggregate for all claims) the total annual amount paid under these Terms or the applicable agreement during its then-current contract year. If no fee is paid to Company, Company does not retain any liability.
IN NO EVENT WILL COMPANY OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICES OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT BE LIABLE OR INDEMNIFY YOU FOR: (i) ANY DAMAGES CAUSED BY A USER’S OR SUPPLIER’S FAILURE TO PERFORM HIS OR HER RESPONSIBILITIES; (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR (iii) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SITE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF COMPANY OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the agreement.
5.3 Governing Law
All matters with respect to the Services, the Site, and these Terms will be governed by the laws of the Commonwealth of Virginia, United States of America, without regard to any conflict of law principles. All Users and Suppliers agree to the sole and exclusive venue of the state and federal courts encompassing Arlington, Virginia for all matters arising with respect to same, and waive their right to a jury trial. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply hereunder.
5.4 Rules for Sweepstakes, Contests and Games
Any notice pursuant to these Terms shall be in writing and shall be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally or sent by express courier service; (iii) when transmitted if sent by a confirmed facsimile; or (iv) when transmitted via email, provided that the receiving party acknowledges receipt by return email, and that the email clearly states in the subject line that it is intended to give notice under these Terms.
5.6 Entire Agreement
This Agreement supersedes any prior agreement or understanding between the parties whether oral or written, and no party has relied on any representation that is not expressly set forth in this Agreement. Any additional or conflicting terms contained in any User or Supplier purchase order, proposal or other document shall be deemed to be rejected by Company without need of further notice of objection, even if such document is acknowledged or accepted by Company, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Company. The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions.
5.7 Force Majeure
Company will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by a User or Supplier, its employees, agents, or contractors. The parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of this Agreement. Company is not liable for excusable delay.
5.8 Legal Fees
Company shall be entitled to recover reasonable attorney’s fees in the event Company is the prevailing party in any legal action to enforce or interpret these Terms or the Agreement.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by a User or Supplier, but may be assigned by Company without restriction.
The Site is provided by Company. Any questions, comments or complaints regarding these Terms or the Site should be addressed to email@example.com.
5.11 Notice for California Users
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.