BANGSTREETS.COM TERMS AND CONDITIONS
Effective December 1, 2006 NOTICE BangStreets.com may from time to time modify these terms and post a copy of the amended Agreement at http://www.BangStreets.com.com. If you do not agree to (or cannot comply with) the Agreement as amended, your only remedy is to stop using the Service. AGE REQUIREMENT You must be at least 18 years of age to agree to and enter into this Agreement on your own behalf and to register for use of the Service. If you are under 18 but at least 13 years of age, you must present this Agreement to your parent or legal guardian, and he or she must check the box below to enter into this Agreement on your behalf. Children under the age of 13 may not register for this Service, and parents or legal guardians may not register on their behalf. By checking the box indicating your acceptance to this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering on behalf of your child or a child in your legal care. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the Service, including all financial charges and legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Service. DESCRIPTION OF SERVICE The Service allows you to listen to Samples (as defined below) and obtain downloads of sound recordings ("Tracks") and related digital content ("Materials"). To access the Service, you may need to install or activate BangStreets.com's proprietary software application; from time to time, you may also be required to install other software made available through the Service (collectively this software is called the "Application Software"). You may also need to install certain third-party software. You are responsible for any hardware, systems and/or software program(s) you use and any associated fees and expenses (a) to connect to or use the Internet, and/or (b) other than theSupport Software, to use any Materials. The Service, the Tracks and/or the Materials (including any BangStreets.com promotional offers or codes redeemable for the Service, the Tracks and/or the Materials) are only for your personal, non-commercial use and are non-transferable (except as otherwise expressly authorized by BangStreets.com). REGISTRATION To use the Service, you must register and provide certain information,
including a member (user) name, a password and a valid email address
("Registration Data"). You agree to provide accurate Registration
Data and to update your Registration Data as necessary to keep it accurate.
BangStreets.com will use your Registration Data in accordance with its
privacy policy. USE OF SERVICE, SOFTWARE, TRACKS AND MATERIALS Software. All software made available by BangStreets.com on or through
the Service, are protected by intellectual property laws and your use
of them is governed by this Agreement as well as any applicable end-user
license agreements Usage Rules. Your access to and/or use of any Track(s) will be limited by the rules assigned to the Track(s) by BangStreets.com ("Usage Rules") and described in this section. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with any Usage Rules or Tracks. BangStreets.com reserves the rights to modify the Usage Rules at any time. A "Sample" is a portion of a Track or, in some cases, an entire Track or promotional music video that you can play (and, if applicable, view) directly from and while you are logged on to the Service on a promotional basis at no cost to you. You may play as many Samples as you like. You may not attempt (or support others' attempts) to capture, copy, or download a Sample. A "Purchased Track" is a Track that you may (1) save to the
hard drives of up to three (3) of your personal computers and play back
at any time, (2) burn to a CD and/or (3) transfer to a compatible portable
device. Any security technology that is provided with a Purchased Track
is an inseparable part of it. If you have Purchased Tracks, it is your
responsibility not to lose, destroy or damage them. BangStreets.com
shall have no liability to you in the event of any such loss, destruction,
or damage. You may purchase Tracks on an individual basis and you may
also be offered the ability to purchase Tracks in groups (called "Track
Packs"), sometimes at discounted pricing. You may burn each Purchased Track to a CD an unlimited number of times,
but may only burn each Purchased Track up to seven (7) times as part
of any particular playlist of songs. A "playlist" is a discrete
group of Purchased Tracks that are arranged together in a particular
order. Once you have burned a Purchased Track to a CD, you agree not
to copy, distribute, or transfer the track from that CD to any other
media or device. The burning or transfer capabilities provided for herein shall not operate to waive or limit any rights of the copyright owners in Tracks or Materials or any works embodied in them. If you are using the version of the Service that is accessible from Microsoft Corporation's Windows Media Player 9 Series, you will only be able to burn or transfer Purchased Tracks using the Windows Media Player. In addition, if you are using the version of the Service that runs in Microsoft Corporation's Windows XP Media Center Edition 2004, certain features that are available in the Service will not be available in the "distance viewing" experience. All rights not expressly granted to you in this Agreement are reserved to BangStreets.com and/or its licensors. Sync/Restore. BangStreets.com will maintain a record of your Purchased Tracks. You may use the "Sync/Restore" function to obtain another copy of those Purchased Tracks for up to two (2) additional computers that you own. Importing Tracks. BangStreets.com does not represent or guarantee that the site will successfully import or support any song files that do not originate form BangStreets.com. Further, BangStreets.com does not purport to grant you any rights to use any such song files. Your use of such song files must be subject to another grant of rights that you have received from the copyright holder(s) and any other legal rights holders (please note that there may be more than one copyright involved in any track). If you violate the copyright laws, there may be fines or criminal charges brought against you, even if you don't get any commercial benefit from the illegal copies. You agree to indemnify and hold harmless BangStreets.com, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from your use of such song files and/or from your violation of any copyright laws by such use. Loss of Rights by BangStreets.com. BangStreets.com may at any time lose the right to make certain Tracks and/or Materials available. In such event, you will no longer be able to obtain these Tracks and/or Materials or to utilize the any support function for Purchased Tracks. Delivery of Products. On occasion, technical problems may delay or prevent delivery of Purchased Tracks and Materials to you. Your sole remedy with respect to Purchased Tracks and any Materials that are not delivered will be either replacement of such products or refund of the price paid for such content, at BangStreets.com's discretion. Customer Support. Please direct any questions concerning the the Service, billing and/or Usage Rules to a BangStreets.com customer service representative. Restrictions. You may not use any service from or throuth the BangStreets.com service to transmit, display, perform or otherwise make available any messages, content or materials (i) that are illegal, obscene, threatening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iii) that infringe third-party rights or harm minors in any way. You may not interfere with or disrupt the Service or any networks connected to or by the Service. In addition, you may not use a false email address or otherwise mislead other members as to your identity or to the origin of a message or content. By posting messages, inputting data, or engaging in any other form of communication through the Service, you agree that BangStreets.com may copy, sublicense, adapt, transmit, publicly perform or display any such content to provide and/or promote the Service and/or to respond to any legal requirement, claim or threat. If BangStreets.com's use of such content exploits any proprietary rights you may have in such material, you agree that BangStreets.com has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right do so. You agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility. CHARGES / BILLING Agreement to Pay. You agree to pay for all Tracks and Materials that you purchase through BangStreets.com, and BangStreets.com may charge your billing payment method for any such payment(s). BangStreets.com may, in its discretion, post charges to your billing payment method individually or may aggregate your charges with other purchases you make on the Service. You are responsible for keeping your account secure and confidential and you will be responsible for any charges that are incurred by any person through your account. All charges will be billed to the billing payment method you designate when you first make a purchase or incur a charge. If any of your billing information changes, you must update that information in the "Member Information" section of the "My Account" area. Right to Change Prices. All prices for products within the Service are subject to change by BangStreets.com at any time. Taxes. Prices quoted are generally inclusive of any applicable taxes, including sales taxes. BangStreets.com reserves the right to change this policy at any time. Electronic Contracts. You agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and to pay for such purchases. To the extent that such electronic purchases are offered to you by a third party, you acknowledge that BangStreets.com shall not be responsible or liable to you for the products or services purchased. EXPLICIT CONTENT Certain albums may be subject to the Recording Industry Association of America ("RIAA") "Parental Advisory Label" (as defined at http://www.riaa.com/issues/parents/advisory.asp). The RIAA assigns the Parental Advisory Label to an entire album and not the individual songs on the album. All Tracks from such labeled albums will be labeled as "explicit" within the Service ("Explicit Tracks"). If any of your searches on the Service return Explicit Tracks, they will be identified as such in the search results area. During registration, you may elect to filter out Explicit Tracks from your search and browse results within the Service. You may change that election at any time. You may also elect to create a "Parental Control Password" (which can be different from your registration password) by clicking on the applicable link and following the directions presented. If you create a Parental Control Password, you will be asked for that password any time you try to change your election to filter out Explicit Tracks. Note that Tracks that were recorded prior to 1985 are not subject to the RIAA Parental Advisory Label. BangStreets.com shall have no liability or responsibility to you for any content or materials, including Explicit Tracks, that may be available in connection with the Service that you might find objectionable. PRIVACY For additional information regarding BangStreets.com's use of information collected in connection with the Service, please refer to BangStreets.com's Privacy Policy and is a part of this Agreement. COPYRIGHT INFORMATION General. As noted above, the Service, the Tracks, and the Materials contain and/or comprise copyrighted or other proprietary subject matter, and your use of them is governed by this Agreement, certain end-user license agreements, and applicable law. Notices. BangStreets.com respects the intellectual property rights
of others, and it expects you to do the same. If you know of or suspect
that any use of the Service, Tracks, Materials and/or the Client constitutes
copyright infringement, please send a notice to BangStreets.com email
address as posted on the website. All trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of BangStreets.com and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these marks without prior written permission of the mark owner. The Service and the Client (and portions of them) may be protected under patent law and may be the subject of issued patents and/or pending patent applications. VIOLATION OF INTELLECTUAL PROPERTY RIGHTS If BangStreets.com receives a notice alleging that you have engaged in behavior that infringes BangStreets.com's or other's intellectual property rights or reasonably suspects the same, BangStreets.com may suspend or terminate your account without notice to you. If BangStreets.com suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, including for any amounts that you have previously paid. PROMOTIONS AND ADVERTISING BangStreets.com and/or its business partners may present advertisements or promotional materials on or through the Service. Your participation in any promotional event is subject to the terms and conditions associated with that event. Your dealings with, or participation in promotions of, any third-party advertisers on or through the Service are solely between you and such third-party. You agree that BangStreets.com shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service. LINKS TO THIRD-PARTY SITES The Service may present links to third-party websites not owned or operated by BangStreets.com. BangStreets.com is not responsible for the availability of these sites or their contents. You agree that BangStreets.com is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. MODIFICATIONS TO SERVICE BangStreets.com reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you, without any liability to you or to any third party. REMEDIES You agree that any unauthorized use of the Service, the Tracks, the Materials, the Client or any related software or materials would result in irreparable injury to BangStreets.com and/or its affiliates or licensors for which money damages would be inadequate, and in such event BangStreets.com, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this Agreement shall be construed to limit remedies available pursuant to statutory or other claims that BangStreets.com, its affiliates and/or licensors may have under separate legal authority. INDEMNITY You agree to indemnify and hold harmless BangStreets.com and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of the Service, the Tracks, the Client or the Materials and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof. TERMINATION BangStreets.com may in its sole discretion terminate this Agreement or suspend your account at any time without notice to you in the event that you breach (or BangStreets.com reasonably suspects that you have breached) any provision of this Agreement. If BangStreets.com terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and BangStreets.com will not refund any amounts that you have previously paid. You understand and agree that your cancellation of your account and Service membership is your sole right and remedy with respect to any dispute with BangStreets.com. DISCLAIMERS You understand and agree that your use of the Service, Tracks, Client, and the Materials is at your own sole risk. THE SERVICE, TRACKS, MATERIALS AND THE CLIENT (THE "PRODUCTS") ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY BANGSTREETS.COM OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "BANGSTREETS.COM ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE BANGSTREETS.COM ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THE BANGSTREETS.COM ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY BANGSTREETS.COM ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR USING THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE BANGSTREETS.COM ENTITIES. BANGSTREETS.COM MAKES NO WARRANTY THAT ANY PARTICULAR CD BURNER OR PORTABLE DEVICE WILL BE COMPATIBLE WITH ALL SYSTEMS OR THAT ANY CD OR COPY MADE FROM BANGSTREETS.COM WILL FUNCTION IN ALL PLAYERS. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR SYSTEM(S) WILL FUNCTION CORRECTLY WITH BANGSTREETS.COM OR ITS SOFTWARE. UNDER NO CIRCUMSTANCES SHALL ANY BANGSTREETS.COM ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE, TRACKS, MATERIALS. UNDER NO CIRCUMSTANCES SHALL ANY BANGSTREETS.COM ENTITY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF THE BANGSTREETS.COM ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE BANGSTREETS.COM ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED US $10. LAW AND LEGAL NOTICES This Agreement and any other terms or documents referred to herein represent your entire agreement with BangStreets.com with respect to your use of the Service. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of the State of TEXAS govern this Agreement and your use of the Services, the Tracks, and the Materials. You expressly agree that the courts in the State of Texas, Fort Bend County, have exclusive jurisdiction over any claim or dispute with BangStreets.com or relating in any way to your account or your use of the Services, the Tracks, and the Materials. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts in Fort Bend County in connection with any such dispute including any claim involving BangStreets.com or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.
Usage Rules -- Additions. A "Stream" is a Track that you play directly from and while you are logged on to the Service. You may play as many Streams as you like while your subscription is current. You may not attempt (or encourage others) to capture, copy, or download a streamed Track. BangStreets.com will count the number of times that you stream each Track for royalty accounting and analysis purposes. A "Download" is a Track that you may save to the hard drive of your personal computer and play back as many times as you want. for so long as your subscription is current. You may make an unlimited number of Downloads while your subscription is current. You may copy each Download to up to two additional personal computers that you own (i.e. a total of 3 copies). If you wish to burn Downloads to CDs or transfer them to compatible portable devices (other than using the "BangStreets.com To Go" Service described below) you will need to pay for them as Purchased Tracks. You may not share Downloads with anyone else. BangStreets.com automatically renews your rights to all of your Downloads at the beginning of each Subscription Month (as defined below) so long as your subscription remains current. This means that in order to play any Download after the end of a Subscription Month (as defined below), you must log on to the Service so that BangStreets.com can renew your rights for those Tracks. The Client will count the number of times that you play a Download, including while you are offline, for royalty accounting and analysis purposes. If you register for the "BangStreets.com To Go" tier, you will be able to transfer your Downloads an unlimited amount of times to up to a maximum of three (3) compatible portable devices for as long as your "BangStreets.com To Go" membership is current. For royalty accounting and analysis purposes, BangStreets.com will track the Downloads that you so transfer and the number of times that you play Downloads on such devices. BangStreets.com also automatically renews your rights to any Downloads stored on your portable devices at the beginning of each Subscription Month. Thus, in order to continue to play such Downloads on that portable device, you will need to dock your portable device (i.e., connect to the PC) and log onto BangStreets.com at the beginning of each Subscription Month. If you have Tracks that were pre-loaded to your personal computer, portable device, CD or DVD, you may access and play these Tracks as Downloads only after you have registered for a tier of the Subscription Service. You may not otherwise access or play these Tracks and you agree not to attempt to do so. For a current list of portable devices that are compatible with "BangStreets.com To Go", please see the section titled "BangStreets.com To Go Compatible Devices" at: http://www.BangStreets.com.com/compatible_devices/. BangStreets.com's ability to offer portable device compatibility is subject to change at any time with respect to any content. Agreement to Pay. By completing the Subscription Service registration, you authorize BangStreets.com to charge applicable recurring subscription fees to your designated billing payment method. Monthly subscribers are billed on a 30-day cycle, which begins upon Subscription Service registration (or at the end of a limited free trial period, if applicable to a promotion that you joined through) and ends 30 days thereafter (each a "Subscription Month"). If you are already a standard Subscription Service member and you sign up for the "BangStreets.com To Go" tier, your billing payment method will immediately be charged so that your monthly fee for that month (or annual fee if applicable) is increased on a pro-rated basis. If you are a "BangStreets.com To Go" user and you downgrade your membership to a standard Subscription Service membership, you will be charged for "BangStreets.com To Go" until the end of the Subscription Month in which you cancel your "BangStreets.com To Go" tier. If you are joining BangStreets.com under a subscription plan with an installment billing option (e.g., 1 year subscription billed monthly), BangStreets.com will charge your billing payment method for each applicable installment without further advance notice. If your billing payment method changes during the term of your subscription plan, you must immediately update the billing payment method associated with your BangStreets.com account. If BangStreets.com is unable to charge your billing payment method for an installment, BangStreets.com may: (i) immediately suspend or terminate your BangStreets.com account, (ii) seek collection of the outstanding amount owed under the subscription plan and/or (iii) seek legal action against you for breach of this Agreement. Billing Authorizations for Free Trial Memberships. You may be required to provide billing payment method to register for a free trial offer to the Subscription Service. In that event, you agree that BangStreets.com may obtain a pre-authorization for the fee amount that you will be charged if you complete the free trial and continue a Subscription Service membership. It is possible that some financial institutions may perceive these requested amounts as actual pending charges. These are not actual charges however, and BangStreets.com will not be responsible for any results, such as an overdraft fee, that may occur to your account because of them. Right to Change Subscription Fees. All subscription fees are subject to change on a prospective basis upon notice from BangStreets.com. If you do not accept the new fees, you should terminate your subscription immediately. Cancellation. You can cancel your monthly subscription or downgrade your "BangStreets.com To Go" subscription by delivering notice to BangStreets.com by clicking here. BangStreets.com will reasonably attempt to return a cancellation confirmation to your email address. You should retain this confirmation as a record of your cancellation. If you cancel your monthly subscription, BangStreets.com will not refund any remaining portion of your subscription fees. Cancellation will take effect at the end of the billing period during which you deliver notice to BangStreets.com. If you cancel your account near the end of your billing period and are charged for the next month's fee, please click here to have that charge refunded. If you are joining BangStreets.com under a subscription plan, you cannot cancel your BangStreets.com account prior to the end of the term of the applicable subscription plan. |
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