YOU AND EIGHTOCTAVES.COM, OWNED AND OPERATED BY EIGHTOCTAVES (THE “COMPANY”, “WE” OR “US”) AGREE THAT YOUR ACCESS TO AND USE OF THE eightoctaves.COM WEB SITE (THE “WEB SITE”), IS SUBJECT TO YOUR AGREEMENT TO THE TERMS AND CONDITIONS LISTED BELOW, WHICH WILL BECOME A BINDING AGREEMENT BETWEEN YOU AND THE COMPANY (THE “AGREEMENT”). THE COMPANY IS WILLING TO ALLOW YOU ACCESS TO THE WEB SITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. AFTER READING THE TERMS, IF YOU AGREE TO THEM, PLEASE INDICATE YOUR DECISION BY CLICKING ON “I AGREE” AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE, INDICATE YOUR DECISION BY CLICKING ON “I DO NOT AGREE” AND YOU WILL BE RETURNED TO THE HOME PAGE OF THIS WEB SITE.
2. AGE RESTRICTIONS. Individuals under the age of 13 are prohibited from accessing the Web Site without verified parental consent furnished to Company in accordance with the Children’s Online Privacy Protection Act of 1998. You hereby represent and warrant that you are 14 years of age or older. SOME AREAS OF THE WEB SITE MAY CONTAIN MATERIAL THAT IS INAPPROPRIATE FOR MINORS.
3. PUBLISHING OF CONTENT. You hereby acknowledge and agree that you are solely responsible for all materials that you post or publish on the Web Site, including without limitation, information, code, data, text, software, music, sound, links, photographs, pictures, graphics, video, chat, messages, files and any other materials (“Content”). You represent, warrant and agree that no Content submitted by you or through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You represent and warrant that you have all legal rights necessary to publish any Content on the Web Site or that you own such Content. You hereby acknowledge and agree that Company shall, at all times, possess the right to refuse to include and/or to cause the removal of any or all of your Content for any reason and at its sole discretion. You hereby acknowledge and agree that Company may, at its sole discretion, disclose your Content in order to:
(i) comply with law enforcement, court orders, or the legal process; and/or
(ii) protect the rights and safety of individuals; and/or
(iii) settle disputes over intellectual property ownership.
The Company owns, protects and enforces copyrights in its own creative material and respects the copyright properties of others. Materials may be made available on the Web Site, or via the Web Site, by third parties not within the control of the Company. It is our policy not to permit materials known by us to be infringing to remain on this Web Site. You should notify us promptly if you believe any materials on this Web Site infringe a third party copyright. Upon our receipt of a proper notice of claimed infringement under the Digital Media Copyright Act, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted in writing to the following ID this Web Site:
Please be advised that the Company may provide an alleged infringer with any notice of claimed infringement, including notices of claimed infringement submitted by you under the DMCA, and any communications related thereto. The Company may also provide any counter notifications received under the DMCA, and communication related thereto, to the provider of the original notice of claimed infringement. All notices and communications provided by you to us become the property of the Company and you hereby grant us the right to provide such notices and communications to any third party.
If you engage in “repeat infringement” we may terminate your registration and account without notice, and you will not longer be permitted access to the Web Site or the Services. “Repeat infringement” shall be defined as two (2) or more instances, as determined by us in our reasonable discretion, where you have infringed the copyright rights of another person.
BEFORE READING FURTHER, PLEASE CONSIDER THE FOLLOWING:
Sections 4, 5 and 6 of these Terms and Conditions of Use can be confusing and we apologize for the legalese that is used. But the bottom line is that at no time will either eightoctaves or a user have any rights to sell or commercialize your music. When you publish a music file to the Web Site, you have two choices. You can make the file available for listening only or you can allow others to download and copy the file. If you chose the first option, users can only listen to the music file. No other rights are transferred to us or to users. We can not sell or distribute the music file, or make it available for any commercial purpose without your permission. The only thing we can do with the music file is allow users to play it on our Web Site or inside of Widgets that are available from the Web Site (the Widget can be located on our Web Site or another web site). If you chose the second option, a user can download and store the music file without charge. The user will then forever have the right to play the file for his or her personal enjoyment. This is very similar to downloading a song from iTunes. Although the user can play the file, the user can not sell, distribute or commercialize the music file in any way. This is the intent of the Usage Rules in Section 6. No matter which option you chose, at no time are we or a user entitled to sell your music or use it for any commercial purposes and you still retain all rights to commercialize your music.
4. LICENSE TO CONTENT (EXCEPT MUSIC FILES AVAILABLE FOR COPYING BY OTHER USERS). By Publishing Content (except your audio or music files that you allow others to download and copy) to any part of the Web Site, you automatically grant to the Company, and you represent and warrant that you have the right to grant to the Company, a non-exclusive, transferable, fully-paid, worldwide license (with the rights to sublicense) to use, copy, perform, display, reformat, translate, excerpt (in whole or in part) and distribute such Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. This license includes without limitation any and all professional names, photos, trademarks, logos and biographical information of artists, performers or bands. You may remove such Content from the Web Site at any time and the license granted above will automatically terminate.
5. LICENSE TO MUSIC FILES AVAILABLE FOR COPYING BY OTHER USERS. The Web Site includes Services where you may publish music files and allow other users to download and copy such files. If you use the Services to allow other users to copy, perform and use your music files, you automatically grant to the Company and other users, and you represent and warrant that you have the right to grant to the Company and other users, an irrevocable, perpetual, non-exclusive, transferable, fully-paid, worldwide license (with the rights to sublicense) to use, copy, perform, display, reformat, translate, excerpt (in whole or in part) and distribute such files and to prepare derivative works of, or incorporate into other works, such files; provided, however that in all events other users’ rights with respect to such files will be subject to the Usage Rules set forth in Section 6 below. You may remove such files from the Web Site at any time and the license granted above to such music files will survive such removal. However, we will not continue to publish or make available on the Web Site content you have removed from the site.
THE FOREGOING GRANT OF RIGHTS IN SECTIONS 4 AND 5 INCLUDES PUBLIC PERFORMANCE RIGHTS. PUBLIC PERFORMANCE RIGHTS INCLUDE THE RIGHTS TO PLAY YOUR SONGS IN PUBLIC VENUES SUCH AS RESTAURANTS, CAFES, PARKS AND STORES. IF YOU HAVE ALREADY GRANTED YOUR PUBLIC PERFORMANCE RIGHTS TO A PERFORMANCE RIGHTS ORGANIZATION (“PRO”) SUCH AS BMI, ASCAP OR SESAC, THEN (1) YOU MAY BE PROHIBITED FROM GRANTING THE SAME RIGHTS TO US, OR (2) A GRANT OF PUBLIC PERFORMANCE RIGHTS TO US MAY PREVENT A PRO FROM COLLECTING ROYALTIES ON YOUR BEHALF. IN CERTAIN SITUATIONS A PRO MAY REQUIRE THAT AN ARTIST PROVIDE THE PRO WITH NOTICE IF THE ARTIST IS GRANTING PUBLIC PERFORMANCE RIGHTS TO ANOTHER PARTY. IF YOU HAVE AN AGREEMENT WITH A PRO, WHICH INCLUDES SUCH A PROVISION, YOU ARE SOLELY RESPONSIBLE FOR PROVIDING SUCH NOTICE TO THE PRO.
6. USE OF WEB SITE AND SERVICES. You understand that the Services and the Web Site are available for your personal use only. Your use of any Services that provide for or facilitate commercial transactions may be subject to additional terms and conditions. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between you and any third party, you understand and agree that we are under no obligation to become involved. In the event that you have a dispute with a third party including other members of the Web Site, you hereby release the Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such dispute and / or our Services. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
In the event that you provide any content (i.e., recordings, compositions, etc.) in response to any contest, request, solicitation or other offering (a “Solicitation”) that is made available by a third party through the Site, any license, assignment or transfer of rights in and to such content to the third party is solely between you and the third party; provided, however, that in the event you provide a remix in response to a Solicitation, you hereby assign all rights, title and interest in and to such remix to the third party that is providing the Solicitation.
You agree not to harvest or collect email addresses or other contact information of other Web Site users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Web Site. You agree that you will not use the Web Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Web Site. In addition, you agree not to use the Web Site to:
(i) upload, post, email, transmit or otherwise make available any Content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable;
(ii) impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
(iii) 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;
(iv) 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; or
(v) use or attempt to use another user’s account, without authorization from the Company, or create a false identity using the Services or the Web Site.
If you download or copy music files from the Web Site, you agree to use any music files that you download and copy in compliance with the following Usage Rules:
(i) Your use of the music files is conditioned upon your prior acceptance of these Terms and Conditions of Use;
(ii) You shall be authorized to use the music files only for personal, noncommercial use;
(iii) You may not combine a music file with any video or image file to create a multimedia work;
(iv) You may not use a music file as a musical “ringer” in connection with a phone or phone calls;
(v) The download and copy of a music file does not transfer to you any commercial or promotional use rights in the music file; and
(vi) You agree that your download and copy of music files constitutes your acceptance of and agreement to the Terms and Conditions of Use and these Usage Rules, and that any use of the music files other than in accordance with these Usage Rules may constitute a copyright infringement.
The Company reserves the right to modify the Usage Rules at any time.
7. LINKS TO OTHER WEB SITES. The Web Site contains links to other web sites. We are not responsible for the content, accuracy or opinions expressed in such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked web site on or through the Web Site or the Services does not imply approval or endorsement of the linked web site by us. If you decide to leave the Web Site and access these third-party sites, you do so at your own risk.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE WEB SITE OR THE SERVICES, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY WARRANTIES FOR THIRD PARTY SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE WEB SITE OR THE SITES OR SERVICE, OR ACCESSED THROUGH ANY LINKS ON THE WEB SITE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF: (A) THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICES; AND (B) TEN DOLLARS ($10). CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
9. INDEMNITY. You agree to indemnify and hold the Company and its directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of any claim, action, investigation or proceeding made or instituted by any third party due to or arising out of:
(i) your breach of any representations or warranties made by you hereunder or your breach of any term of this Agreement;
(ii) your use of the Services or the Web Site in violation of this Agreement; or
(iii) or your violation of any law or the rights of a third party.
You hereby agree not to sue, assist in or be a voluntary party to assist in or be a voluntary party to, except as required by law, any action, suit, or proceeding against the Company for any claims, actions, suits, damages, liability, losses or expenses of whatever kind or however arising out of or relating to your use of the Web Site or the Services.
10. USE OF WEB SITE CONTENT. All Content on the Web Site, is the proprietary property of the Company or its licensors (including Web Site users). Subject to the terms of this Agreement (see Sections 5 and 6 above), 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 the Company or the owner of the Content. Except as otherwise set forth in this Agreement, any use of the Content is strictly prohibited. All trademarks, logos, trade dress and service marks on the Web Site are trademarks or registered trademarks of the Company or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
11. DISCLAIMER OF WARRANTIES. The Company is not responsible for any incorrect or inaccurate Content published on the Web Site or in connection with the Services, including Content published by users of the Web Site or the Services. The Company is not responsible for the conduct, whether online or offline, of any user of the Web Site. The Web Site and the Services may be temporarily unavailable from time to time for maintenance or other reasons. The Company 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 Web Site or the Services. The Company 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 web site, including injury or damage to any person’s computer related to or resulting from participating or downloading materials in connection with the Web Site or the Services. Under no circumstances will the Company be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Services, the Web Site or any Content published on the Web Site. THE WEB SITE, THE SERVICES AND THE CONTENT ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEB SITE AND/OR THE SERVICES.
12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. Any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-567.1 et seq. (the “Uniform Arbitration Act”) and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. You agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. In the event that the above arbitration provision is held invalid or unenforceable, then any dispute with respect to this Agreement shall be brought and heard either in the North Carolina state courts located in Wake County, North Carolina, or the federal district court for the Eastern District of North Carolina located in Raleigh, North Carolina. In such event, you consent to the in personam jurisdiction and venue of such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.
13. CREDITS, HOLDS AND OFFSETS. Please be advised that if we receive any claim or threat or a claim that is related to your use of the Services, we may put a “hold” on any account you have with us, including any monies held on your behalf. Furthermore, to the extent that you owe us any amounts as a consequence your use of the Services or our settlement of any claim made against you, we may, in our sole discretion, deduct all or a portion of such amounts from any amounts held by us in your accounts, including amounts held in your Deposit Account (as defined in the Artist Digital Distribution Agreement). Any such deduction will not relieve you of any obligation to pay the remainder of any amounts due from you to us.
14. MISCELLANEOUS. This Agreement sets forth the entire agreement between you and the Company pertaining your use of the Web Site and the Services. We reserve the right, at our sole discretion, to change, modify, add, or delete portions this Agreement at any time without further notice. If we do this, we 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 Web Site after any such changes constitutes your acceptance of the revised Agreement. If you do not agree to abide by this Agreement or any future revised Agreement, do not use or access the Services or the Web Site. It is your responsibility to regularly review this Agreement. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. The Company’s failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision.