TERMS OF USE
ACCEPTANCE OF TERMS THROUGH USE
By visiting FunkMachine.com (hereinafter the "Site"), submitting Materials or in any manner availing yourself of any Services offered at, on or through the Site you signify your agreement to all terms, conditions, policies and notices contained or referenced in this agreement (hereinafter the, or this, "Agreement"). If you do not agree with any provision of this Agreement, do not use the Site or any Service. Your continued use of the Site or any Service following the posting of any modifications to this Agreement constitutes your express acceptance of such modifications. As between you (whether you are an individual representing yourself, or acting as the representative for a group, band, business entity or association) and Funk Machine Inc., (referred to as "we," "us" or "Funk Machine"), this Agreement applies to each and every service we offer (the "Service"). Some particularized Services may be subject to additional terms and conditions set forth in separate agreements. Funk Machine is a Delaware corporation. You and Funk Machine may be referred to collectively herein as the "Parties" and individually as a "Party."
ARTICLE I. GENERAL USE PROVISIONS
Section 1.01 Applications
This Article I applies to any Person who visits, submits Material to or in any manner avails themselves of any Service offered at, on or through the Site (hereinafter a "User"). As set forth herein, the term, "User" includes, but is not limited to, Subscribers and Hosting Subscribers.
Section 1.02 Definitions.
(a) For purposes of this Agreement the term, "Artist" shall refer to any individual or group, whether or not organized as a legal entity, that made any creative contribution to Materials you post at, on or through the Site.
(b) For purposes of this Agreement the term, "Person" shall refer to any individual, corporation, partnership, association or other group of persons, whether or not organized as a legal entity, or legal successors or representatives of the foregoing.
(c) For purposes of this Agreement the term, "Materials" shall include but is not limited to: sound recordings, musical compositions, lyrics, pictures, graphics, photographs, text, videos and other audiovisual work, album and other artwork, liner notes and all other original works of authorship.
(d) For purposes of this Agreemenet the term, "Collective Work" shall mean a work, such as a periodical issue, anthology or encyclopedia, in which the Materials in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this Agreement.
(e) For purposes of this Agreement the term, "Derivative Work" shall mean a work based upon the Materials or upon the Materials and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Materials may be recast, transformed, or adapted. For the avoidance of doubt, where the Material is a musical composition (including lyrics), sound recording or moving image, the synchronization of the Material in timed-relation with another musical composition, sound recording or moving image ("synching") will be considered a Derivative Work for the purpose of this Agreement.
Section 1.03 License and Site Access.
Funk Machine grants you a personal, revocable, nontransferable, and non-exclusive license to access and make personal use of the Site and to use the object code of the Site on a single computer, subject to the following terms and conditions:
(a) You do not, and do not allow any third party to, copy, modify, create a derivative work from, or attempt to transfer any right in the software for the Site; and
(b) You do not download (other than page caching) or modify the Site or any portion of it, without Funk Machine's express written consent; and
(c) You do not download (other than page caching), modify or exercise any other exclusive right to any Materials posted on the Site, without a written license from the owner(s) of such Materials.
This license expressly excludes any resale or commercial use of the Site or its contents; any collection or use of any product listings, descriptions, or prices; any derivative use of the Site or its contents; any downloading or copying of account information for the benefit of any merchant; and any use of data mining, robots, or similar data gathering and extraction tools. Neither the Site nor any portion thereof may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without Funk Machine's express written consent.
Section 1.04 Terms of Use.
(a) From time to time Funk Machine may post policies on the Site, including but not limited to our Privacy Policy, and our Digital Millennium Copyright DMCA Policy (the "Policies"). The Policies are incorporated by reference into this Agreement and you agree to their terms. You should review the Policies frequently and carefully.
(b) Funk Machine shall have the right to review all Materials and in its sole discretion to remove or refuse to post any Materials for any reason.
(c) Except for User-posted Materials, the entire Site, including all object code and source code, text, graphics, multimedia content, including but not limited to images, illustrations, audio and video clips, html and other mark up languages, and all scripts within the Site or associated therewith, is the sole and exclusive property of Funk Machine Inc. All rights reserved.
(d) The Site is protected by all applicable federal and international intellectual property laws. No portion of the Site may be reprinted, republished, modified or distributed in any form without Funk Machine's express written permission. You agree not to reproduce, reverse engineer, decompile, disassemble or modify any portion of the Site. Certain content may be licensed from third parties and all such third party content and all intellectual property rights related to such content belong to the respective third parties.
(e) You acknowledge that Funk Machine retains exclusive ownership of the Site and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Site or any Service, and Funk Machine reserves all rights not expressly granted hereunder. You shall promptly notify Funk Machine in writing upon your discovery of any unauthorized use or infringement of the Site or any Service or Funk Machine' patents, copyrights, trade secrets, trademarks or other intellectual property rights. The Site contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
(f) Violations of this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
(g) Subject to our Privacy Policy, no information or Material uploaded or sent to Funk Machine at, on or through the Site will be deemed or treated as confidential.
(h) You agree to comply with the Acceptable Use Policy ("AUP") of any vendor providing bandwidth or related services to Funk Machine, including but not limited to the follwing:
Section 1.05 Framing, Metatags and Linking.
Framing and Metatags.
You may not frame or use framing techniques to enclose any Funk Machine trademark, logo, or other proprietary information (including but not limited to images, text, page layout, and form) without Funk Machine's express written consent. You may not use any metatags or any other "hidden text" using Funk Machine's name or trademarks without Funk Machine's express written consent. Any such unauthorized use shall result in the immediate and automatic termination of all permission, rights and/or licenses granted to you by Funk Machine and may also result in such additional action as Funk Machine deems necessary to protect and enforce its legal rights.
Linking: Other
You are granted a limited, revocable, nonexclusive license to create a hyperlink to Funk Machine's home page, provided that you comply with all of the following:
We reserve the right to revoke our consent to any link at any time in our sole discretion.
Section 1.06 Ownership of Materials.
You shall retain full ownership of any and all Materials you submit to Funk Machine, at all times, subject only to the rights and licenses you grant to Funk Machine, its users and sublicensees pursuant to this Agreement or any other applicable agreement. If you believe that Materials in which you hold an ownership interest have been posted to the Site or otherwise submitted to Funk Machine without your permission, you must, and hereby agree, immediately to notify Funk Machine's Copyright Agent.
Section 1.07 Digital Millennium Copyright Act (DMCA) Policy.
Section 512 of the Copyright Law of the United States (17 U.S.C. §512) limits liability for copyright infringement by service providers if the service provider has designated an agent for notification of claimed infringement by providing contact information to the Copyright Office and through the service provider's website. Funk Machine has designated an agent to receive notification of alleged copyright infringement (our agent is identified below). This Section 1.07 is without prejudice or admission as to the applicability of the Digital Millennium Copyright Act, 17 U.S.C., Section 512, to Funk Machine.
How to report a claim of infringement
If you believe that Material on the Site violates any of your exclusive rights under United States copyright law, you must notify our designated agent. Section 512 (c)(3)(A) requires that to be valid, your claim of copyright infringement must be written and addressed to our agent (identified below) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice):
When filing an infringement claim, please include any URLs identifying the allegedly infringing Material along with any other information that might assist our agent's investigation of your claim. Upon receipt of a valid claim (i.e., a claim in which all required information is substantially provided) Funk Machine will undertake to have the disputed Material removed from public view. We will also notify the user who posted the allegedly infringing Material that we have removed or disabled access to that Material. Funk Machine has no other role to play either in prosecuting or defending claims of infringement, and cannot be held accountable in any case for damages, regardless of whether a claim of infringement is found to be true or false.
Please note: If you materially misrepresent that Material infringes your copyright interests, you may be liable for damages (including court costs and attorneys fees) and could be subject to criminal prosecution for perjury.
How to make a counter notification
If you are a Funk Machine user and you feel that Material that you have placed online that has been removed following an infringement complaint is in fact NOT an infringement, you may file a counter notification. Section 512 (g)(3) requires that to be valid, the counter notification must be written and addressed to our agent (identified below) and must provide the following information (again, the list below comes straight from the statute; if you do not understand the language please seek independent advice):
Our designated agent will present your counter notification to the person who filed the infringement complaint. Once your counter notification has been delivered, Funk Machine is allowed under the provisions of Section 512 to restore the removed Material in not less than ten or more than fourteen days, unless the complaining party serves notice of intent to obtain a court order restraining the restoration. It is Funk Machine's policy to terminate subscribers and account holders who are found to be repeat infringers.
Funk Machine's Designated Agent
Funk Machine's designated agent is Louis Willacy, Esq.
By mail:
Louis S. Willacy, Esq.
244 5th Avenue, Suite L209
New York, NY 10001
By phone: 415.670.9400
By fax: 646.365.3465
By e-mail: copyright@funkmachine.com
Section 1.08 User Representations.
By accepting this Agreement and/or submitting Materials to Funk Machine, you expressly warrant and represent the following to Funk Machine and acknowledge that Funk Machine is relying upon such warranties and representations:
(a) That all factual assertions you have made and will make to us are true and complete; that you have reached the age of majority and are otherwise competent to enter into contracts in your jurisdiction; and that in any event you are at least 18 years of age.
(b) That you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to submit Materials on the terms provided herein and to grant Funk Machine the nonexclusive licenses set forth herein.
(c) That no other rights, approvals, consents, licenses and/or permissions are required from any other person or entity to submit your Materials on the terms provided herein or to grant Funk Machine the nonexclusive licenses set forth herein.
(d) That your Materials are original; that your Materials were either created solely by you or, by written assignment, you have acquired all worldwide intellectual property rights in and to your Materials; that if your Materials contain any "samples" or excerpts from copyrightable work the rights to which are owned in whole or in part by any person or entity other than you, that you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to use and include such work in your Materials; and that your Materials do not otherwise infringe on the intellectual property rights of any person or entity.
(e) That neither your Materials nor any comments or reviews you post on the Site violate any common law or statutory patent, copyright, privacy, publicity, trademark or trade secret rights of any person or entity and are not libelous, defamatory, obscene or otherwise actionable at law or equity.
(f) That you have neither intentionally nor with gross negligence submitted any Materials containing or producing any virus or other harmful code or other information that could damage or otherwise interfere with our computer systems or data and/or that of our customers.
(g) You agree to sign and deliver to Funk Machine any additional documents that Funk Machine may request to confirm Funk Machine's rights and your warranties and representations under this Agreement.
(h) You acknowledge that Funk Machine is relying upon the representations, warranties and covenants you have made herein. You agree to and hereby do indemnify Funk Machine, its licensees, assigns and customers against, and hold them harmless from, any loss, expense (including reasonable attorney fees and expenses), or damage occasioned by any claim, demand, suit, recovery, or settlement arising out of any breach or alleged breach of any of the representations, warranties or covenants made herein or arising out of any failure by you to fulfill any of the representations, warranties, or covenants you have made herein.
(i) All representations, warranties or covenants made herein by you shall survive termination of this Agreement.
(j) All warranties and representations made by you herein are made for the benefit of Funk Machine and its sub-licensees and may be enforced separately by Funk Machine and/or by any contractually designated sub-licensee of Funk Machine.
Section 1.09 Grant of Rights.
In consideration of Funk Machine's efforts to provide your Materials with public exposure, you expressly grant to Funk Machine, its users and sub-licensees a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Materials as stated below:
(a) to transmit, stream, broadcast, publicly display and publicly perform in any manner, form or media whether now known or hereafter devised, any of the Materials you submit to Funk Machine;
(b) to modify, edit, alter, transform the Materials and to create and reproduce Derivative Works;
(c) to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works; and
(d) to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works.
(e) For the avoidance of doubt, where the Material is a musical composition:
(f) Webcasting Rights and Statutory Royalties. For the avoidance of doubt, where the Material is a sound recording, you waive the exclusive right to collect, whether individually or via a performance-rights society (e.g. SoundExchange), royalties for the public digital performance (e.g. webcast) of the Materials, Derivative Works and/or Collective Works, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions).
The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats.
Section 1.10 Disclaimer of Warranties.
(a) You acknowledge that the Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and that Funk Machine shall not be responsible to you or others for any such interruptions, errors or problems or for discontinuance of any Funk Machine Service. Funk Machine provides no assurances whatever that any of your Materials will ever be accessed or used by Funk Machine, its visitors, Subscribers or sub-licensees nor, if so accessed or used, that your Materials will continue to be available for any particular length or period of time.
(b) A possibility exists that the Site or any Service could include inaccuracies or errors, or information or materials that violate this Agreement. Additionally, a possibility exists that unauthorized alterations could be made by third parties to the Site or any Service. Although we attempt to ensure the integrity of the Site and every Service, we make no guarantees as to their completeness or correctness. In the event that a situation arises in which the Site's or any Services' completeness or correctness is in question, you agree to contact us including, if possible, a description of the material to be checked and the location (URL) where such material can be found, as well as information sufficient to enable us to contact you. We will make best efforts to address your concerns as soon as reasonably practicable. For copyright infringement claims, see Funk Machine's Digital Millennium Copyright (DMCA) Policy, set forth in Section 1.07 of this Agreement.
(c) The Site and any Service may be discontinued at any time, with or without reason or cause.
(d) Funk Machine disclaims any and all responsibility for the deletion, failure to store, misdelivery or untimely delivery of any information or Material. Funk Machine disclaims any and all responsibility for harm resulting from downloading or accessing any information or Material on the Internet or through the Site.
(e) THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FUNK MACHINE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FUNK MACHINE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF ANY FUNK MACHINE SERVICE. FUNK MACHINE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE. NO OPINION, ADVICE OR STATEMENT OF FUNK MACHINE OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. FUNK MACHINE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS APPEARING ANYWHERE ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED ANYWHERE ON THE SITE.
(f) FUNK MACHINE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND ANY SERVICE AND YOUR RELIANCE THEREON. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, INFORMATION OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION OR DATA.
(g) SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS.
Section 1.11 Limitation of Liability.
(a) NEITHER FUNK MACHINE NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES (TOGETHER, FOR PURPOSES OF THIS SECTION, "FUNK MACHINE"), ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO USE OR MISUSE OF OR RELIANCE ON THE SITE OR ANY FUNK MACHINE SERVICE OR ANY LINKED SITE, EVEN IF FUNK MACHINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL Funk Machine's TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND/OR RELIANCE ON THE SITE OR ANY FUNK MACHINE SERVICE, FROM INABILITY TO USE THE SITE OR ANY FUNK MACHINE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE OR ANY FUNK MACHINE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED AT, IN OR THROUGH THE SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE SITE OR ANY FUNK MACHINE SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, AND LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NONPERFORMANCE OF THE SITE OR ANY FUNK MACHINE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE OR ANY FUNK MACHINE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS OR LIMITATIONS.
(c) WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL FUNK MACHINE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, EPIDEMIC, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
Section 1.12 Copyright and Trademark Notices.
(a) All content included on this Site, including but not limited to text, graphics, logos, button icons, images, data compilations, code and source code, multimedia content, including but not limited to images, illustrations, audio and video clips, html and other mark up languages, and all scripts within the Site or associated therewith, are the property of Funk Machine or its content suppliers and is protected by United States and international copyright laws with All Rights Reserved. The compilation of all content on this Site is the exclusive property of Funk Machine and is protected by United States and international copyright laws with All Rights Reserved. All software used on this site is the property of Funk Machine or its software suppliers and is protected by United States and international copyright laws with All Rights Reserved.
(b) "Funk Machine®," "FM Studio®," "My FM®," "funkmachine.com" and other trademarks, service marks, logos, labels, product names and service names appearing on the Site (collectively, the "Marks") are owned or licensed by Funk Machine. Marks not owned by Funk Machine or its subsidiaries are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Funk Machine.
(c) You agree not to copy, display or otherwise use any Marks without Funk Machine's prior written permission. The Marks may never be used in any manner likely to cause confusion, disparage or dilute the Marks and/or in connection with any product or service that is not authorized or sponsored by Funk Machine.
Section 1.13 Parental Control Protections.
Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at http://internet-filter-review.toptenreviews.com/
Section 1.14 Special Admonitions for International Use.
(a) We make no representation that products or services available on or through the Site or any Service are appropriate or available for use in other locations other than the United States. Those who choose to access the Site or any Service from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
(b) Products, including software, made available through the Site or any Service are further subject to United States export controls. You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. No such products may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any product available through the Site or any Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. We reserve the right to limit the availability of the Site and/or any Service or product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such Service or product that we provide.
Section 1.15 Contests.
Any contests or games that are accessible through the Site are governed by specific rules. By entering such contests or participating in such games you will become subject to those rules. We urge you to read the applicable rules, which are linked from the particular activity, and to review our Privacy Policy which, in addition to this Agreement, governs any information you submit in connection with such contests and games.
Section 1.16 Links or Pointers to Other Sites.
Without in any way limiting any other provisions of this Agreement, Funk Machine makes no representations whatsoever about any other website that you may access through the Site. When you access another website, you understand that it is entirely independent from this Site, and that Funk Machine has no control over the content of such website nor of its policies. In addition, a hyperlink to another website does not mean that Funk Machine endorses or accepts any responsibility for the content, use or policies of the linked website or that the policies of that website are consistent with our policies or the terms and conditions of this Agreement. We strongly encourage you to become familiar with the terms of use and practices of any linked site. Further, it is up to you to take precautions to ensure that whatever links you select or software you download, from any site whatever, is free of such items as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature.
Section 1.17 Removal of Materials.
Upon receipt of your written request, Funk Machine will remove any of your Materials from the Site within a reasonable period of time. Funk Machine's licenses to use such Materials will continue for any copies of such Materials that may have been disseminated in any format or media prior to the actual removal of such Materials from the Site.
Section 1.18 Modifications to Agreement and Services.
You agree that, at any time, Funk Machine may revise, change or modify any terms and conditions of this Agreement and/or any aspect of any Service, without notice to you. You can review the most current version of this Agreement at any time at: http://funk.ephronsys.com:83. When using any Service, you and Funk Machine shall also be subject to any guidelines, Policies or rules applicable to such Service which may be posted on the Site from time to time. All such guidelines, Policies or rules are hereby incorporated by reference into this Agreement and you agree to their terms. Any such revisions, changes or modifications shall be binding and effective immediately upon posting of same to the Site.
Section 1.19 Miscellaneous.
(a) Your rights under this Agreement are not assignable and any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Funk Machine's option.
(b) This Agreement is binding on the Parties and their respective heirs, legatees, executors, successors and assigns. Except for Policies and other agreements incorporated by reference herein, this Agreement is the entire agreement between the Parties and supersedes all prior written or oral agreements between the Parties relating to the subject matter hereof. If any portion of this Agreement is found to be void or unenforceable, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved. The Parties' various rights and remedies hereunder shall be construed to be cumulative.
(c) This Agreement shall be deemed to have been made in the State of California, and it shall be governed by the substantive laws of the State of California without regard to any applicable conflict of laws provisions. The Parties submit to jurisdiction in the state and federal courts sitting in San Francisco, California, and you hereby waive any jurisdictional, venue or inconvenient forum objections.
(d) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. Nothing in this Agreement shall be construed or deemed to create any partnership, agency, joint venture, employment or franchise relationship between the Parties.
(e) Each Party hereto agrees to execute all further and additional documents as may be necessary or desirable to effectuate and carry out the provisions of this Agreement.
(f) Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.
(g) No breach of this Agreement by Funk Machine shall be deemed material unless the Party alleging such breach shall have given Funk Machine written notice of such breach, and Funk Machine shall fail to cure such breach within thirty (30) days after its receipt of such notice.
(h) All notices required to be sent to Funk Machine under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to Funk Machine Inc., 244 5th Avenue, Suite L209, New York, New York 10001 Attention: Legal (or such other address or addresses as may be designated by Funk Machine herein).
(i) All duties, liabilities, obligations, warranties, representations, covenants, authorizations, agreements and restrictions undertaken by and/or imposed upon you in connection with this Agreement shall be deemed to apply jointly and severally to all members collectively and each member individually of any group at any time comprising the Artist whose recordings or other Materials you post, upload or otherwise make available to Funk Machine.
(j) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or any Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(k) Notice for California Users. Under California Civil Code Section 1789.3, California Users are entitled to the following specific consumer rights notice:
(l) You agree to defend, indemnify and hold Funk Machine harmless against any losses, expenses, costs or damages (including any reasonable attorneys' fees and costs) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of any Service, and/or (c) the use of any Service by any other person using your Username. Funk Machine may participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval.
Section 1.20 Acceptance of Electronic Contract.
You agree that this Agreement has the same legal force and effect as a written contract with your written signature and that it satisfies any laws that require a writing or signature, including any applicable Statute of Frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You acknowledge that you have had the opportunity to print this Agreement.
This Site is owned and operated by Funk Machine Inc. Last Updated: 7/15/2006