May 4, 2007
MyBlogBand, L.L.C. owns and operates MyBlogBand.com which is a musical networking service that allows musicians, bands and listeners to interact. Among other things, Members, individually and with their bands, may create original musical compositions and post them on the website for the purpose of attempting to establish certain intellectual property rights in the posted music. It also will allow musicians to collaborate in a band and to combine tracks of individual band members in order to create compositions. Members may form an unlimited number of bands with other members and post musical tracks which may be combined with musical tracks posted by other band members to create songs, instrumental pieces, unique sounds and musical compositions which may be either private within the band or available to the public. Members also may create personal profiles online in order to find and communicate with other musicians. The services offered by MyBlogBand, L.L.C. and MyBlogBand.com ("MyBlogBand.com" or "we") include the MyBlogBand website (the "MyBlogBand Website"), and any other features, content, or applications offered from time to time by MyBlogBand.com in connection with the MyBlogBand Website (collectively, the "MyBlogBand Services"). The MyBlogBand Services are hosted in the U.S.
MyBlogBand.com may modify this Agreement from time to time, and such modification shall be effective upon posting by MyBlogBand.com on the MyBlogBand Website. You agree to be bound to any changes to this Agreement when you use the MyBlogBand Services after any such modification is posted. Therefore, It is important that you review this Agreement regularly to ensure you are updated as to any changes.
Please carefully select the music and information you post on MyBlogBand.com and the content you provide to other Users. Your MyBlogBand.com profile may not include the following items: telephone numbers, street addresses, last names and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, information provided by other MyBlogBand.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and MyBlogBand.com assumes no responsibility or liability for this material. Members may communicate personal information, such as their telephone numbers and street addresses only outside of the website by AIM screen name or other method of private communication, and MyBlogBand.com assumes no responsibility or liability for this material. If you become aware of misuse of the MyBlogBand Services by any person, please contact MyBlogBand or click on the "Report Inappropriate Content" link at the bottom of any MyBlogBand.com page.
MyBlogBand.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including musical tracks by you, or to restrict, suspend, or terminate your access to all or any part of the MyBlogBand Services at any time, for any or no reason, with or without prior notice, and without liability.
1. Eligibility. Use of and Membership in the MyBlogBand Services is void where prohibited. By using the MyBlogBand Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the MyBlogBand Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age.
2. Term. This Agreement shall remain in full force and effect while you use the MyBlogBand Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. MyBlogBand.com may terminate your Membership at any time, without warning. Even after Membership is terminated, this Agreement will remain in effect, including sections 5-20.
3. Fees. You acknowledge that MyBlogBand.com reserves the right to charge for the MyBlogBand Services and to change its fees from time to time in its discretion. If MyBlogBand.com terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
4. Password. When you sign up to become a Member, you will be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify MyBlogBand.com immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Non commercial Use by Members. The MyBlogBand Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by MyBlogBand.com. Illegal and/or unauthorized use of the MyBlogBand Services, including collecting usernames and/or e-mail addresses of Members by electronic or other means for the purpose of sending unsolicited e-mail or unauthorized framing of or linking to the MyBlogBand Website is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the MyBlogBand Services.
6. Proprietary Rights in Content on MyBlogBand.com.
(a) MyBlogBand.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, "Content") that you post to the MyBlogBand Services. After posting your Content to the MyBlogBand Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing ("posting") any Content on or through the MyBlogBand Services, you hereby grant to MyBlogBand.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the MyBlogBand Services.
Without this license, MyBlogBand.com would be unable to provide the MyBlogBand Services. For example, without the right to modify Member Content, MyBlogBand.com would not be able to digitally compress music files that Members submit or otherwise format Content to satisfy technical requirements, and without the right to publicly perform Member Content, MyBlogBand.com could not allow Users to listen to music posted by Members. The license you grant to MyBlogBand.com is non-exclusive (meaning you are free to license your Content to anyone else in addition to MyBlogBand.com), fully-paid and royalty-free (meaning that MyBlogBand.com is not required to pay you for the use on the MyBlogBand Services of the Content that you post), sublicensable (so that MyBlogBand.com is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the MyBlogBand Services), and worldwide (because the Internet and the MyBlogBand Services are global in reach). This license will terminate at the time you remove your Content from the MyBlogBand Services. The license does not grant MyBlogBand.com the right to sell your Content, nor does the license grant MyBlogBand.com the right to distribute your Content outside of the MyBlogBand Services.
b) You represent and warrant that:
(i) you own the Content posted by you on or through the MyBlogBand Services or otherwise have the right to grant the license set forth in this section, and
(ii) the posting of your Content on or through the MyBlogBand Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the MyBlogBand Services.
(c) The MyBlogBand Services contain Content of MyBlogBand.com ("MyBlogBand.com Content"). MyBlogBand.com Content is protected by copyright, trademark, patent, trade secret and other laws, and MyBlogBand.com owns and retains all rights in the MyBlogBand.com Content and the MyBlogBand Services. MyBlogBand.com hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the MyBlogBand.com Content (excluding any software code) solely for your personal use in connection with viewing the MyBlogBand Website and using the MyBlogBand Services.
(d) The MyBlogBand Services contain Content of Users and other MyBlogBand.com licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the MyBlogBand Services without the express written consent of the owner of the Content.
7. Content Posted.
- (a) MyBlogBand.com may delete any Content that in the sole judgment of MyBlogBand.com violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. MyBlogBand.com assumes no responsibility for monitoring the MyBlogBand Services for inappropriate Content or conduct. If at any time MyBlogBand.com chooses, in its sole discretion, to monitor the MyBlogBand Services, MyBlogBand.com nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
(b) You are solely responsible for the Content that you post on or through any of the MyBlogBand Services, for any material or information that you transmit to other Members and for your interactions with other Users. MyBlogBand.com does not endorse and has no control over the Content. Content is not necessarily reviewed by MyBlogBand.com prior to posting and does not necessarily reflect the opinions or policies of MyBlogBand.com. MyBlogBand.com makes no warranties, express or implied, as to the Content, the ownership of the Content, the legal, copyright protection of the Content or to the accuracy and reliability of the Content or any material or information that you transmit to other Members.
8. Content/Activity Prohibited. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MyBlogBand Services. MyBlogBand.com reserves the right to investigate and take appropriate legal action against anyone who, in MyBlogBand.com's sole discretion, violates this provision, including without limitation, removing the offending communication from the MyBlogBand Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of MyBlogBand.com:
(a) is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(b) harasses or advocates harassment of another person;
(c) exploits people in a sexual or violent manner;
(d) contains nudity, violence, or offensive subject matter or contains a link to an adult website;
(e) solicits personal information from anyone under 18;
(f) provides any telephone numbers, street addresses, URLs or e-mail addresses to Users other than AIM screenname;
(g) promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(h) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated music or links to pirated music files, providing pirated computer programs or links to them, or providing information to circumvent manufacture-installed copy-protect devices;
(i) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
(j) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
(k) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(l) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
(m) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(n) includes a photograph of another person that you have posted without that person's consent; or
(o) for band and filmmaker profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content.
9. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of MyBlogBand.com to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of prompt notification to MyBlogBand.com by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the MyBlogBand Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the MyBlogBand Services; (iv) your address, telephone number, and e-mail address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. MyBlogBand.com's Copyright Agent for notice of claims of copyright infringement can be reached as follows: Copyright Agent, My Blog Band, L.L.C., 976 Martin Luther King, Jr. Boulevard, Suite 200 The Cornerstone Building; Facsimile: (919) 933-9082; Attn: Copyright Agent; e-mail: myblogband@gmail.
10. Member Disputes. You are solely responsible for your interactions with other MyBlogBand.com Members. MyBlogBand.com reserves the right, but has no obligation, to monitor disputes between you and other Members.
12. Disclaimers. MyBlogBand.com is not responsible for any incorrect or inaccurate Content posted on the MyBlogBand Website or in connection with the MyBlogBand Services, whether caused by Users of the MyBlogBand Services or by any of the equipment or programming associated with or utilized in the MyBlogBand Services. Profiles created and posted by Members on the MyBlogBand Website may contain links to other websites. MyBlogBand.com is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by MyBlogBand.com. Inclusion of any linked website on the MyBlogBand Services does not imply approval or endorsement of the linked website by MyBlogBand.com. When you access these third-party sites, you do so at your own risk. MyBlogBand.com takes no responsibility for third party advertisements which are posted on this MyBlogBand Website or through the MyBlogBand Services, nor does it take any responsibility for the goods or services provided by its advertisers. MyBlogBand.com is not responsible for the conduct, whether online or offline, of any User of the MyBlogBand Services. MyBlogBand.com 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, any User or Member communication. MyBlogBand.com is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any e-mail or players due to technical problems or traffic congestion on the Internet or on any of the MyBlogBand Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the MyBlogBand Services. Under no circumstances shall MyBlogBand.com be responsible for any loss or damage, including personal injury or death, resulting from use of the MyBlogBand Services, attendance at a MyBlogBand.com event, from any Content posted on or through the MyBlogBand Services, or from the conduct of any Users of the MyBlogBand Services, whether online or offline. The MyBlogBand Services are provided "AS-IS" and as available and MyBlogBand.com expressly disclaims any warranty of fitness for a particular purpose or non-infringement. MyBlogBand.com cannot guarantee and does not promise any specific results from use of the MyBlogBand Services.
13. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MYBLOGBAND, L.L.C. AND MYBLOGBAND.COM EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) MYBLOGBAND, L.L.C. AND MYBLOGBAND.COM MAKE NO WARRANTY (I) THAT THE MYBLOGBAND WEBSITE WILL MEET YOUR REQUIREMENTS, (II) THAT THE MYBLOGBAND WEBSITE WILL BE ERROR-FREE OR BUG-FREE, (III) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, AND (IV) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MYBLOGBAND WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE MYBLOGBAND WEBSITE OR ANY THIRD PARTY OR THROUGH THE MYBLOGBAND WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
14. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER MYBLOGBAND, L.L.C. OR MYBLOGBAND.COM SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EITHER MYBLOGBAND, L.L.C. OR MYBLOGBAND.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SOFTWARE; (II) THE INABILITY TO USE THE SOFTWARE TO ACCESS CONTENT OR DATA; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (V) ANY OTHER MATTER RELATING TO THE MYBLOGBAND WEBSITE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
15. EXCLUSIONS AND LIMITATIONS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 14 AND 15 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND THE LIABILITY OF MYBLOGBAND, L.L.C. AND MYBLOGBAND.COM WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MYBLOGBAND.COM'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, AT ALL TIMES WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MYBLOGBAND.COM FOR THE MYBLOGBAND SERVICES DURING THE TERM OF MEMBERSHIP.
16. Indemnity. You agree to indemnify and hold MyBlogBand.com, its subsidiaries, affiliates, and their respective officers, agents, partners and employees, harmless from and against any claim, suit, action, loss, liability, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the MyBlogBand Website or MyBlogBand Services or arising out of your violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the MyBlogBand Website or through the MyBlogBand Services causes MyBlogBand.com or MyBlogBand, L.L.C. to be liable to another, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
17. U.S. Export Controls. Software which may be available in connection with the MyBlogBand Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the MyBlogBand Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
18. Disputes. If there is any dispute about or involving the MyBlogBand Services, you agree that the dispute shall be governed by the laws of the State of North Carolina, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of North Carolina. Either MyBlogBand.com or you may demand that any dispute between MyBlogBand.com and you about or involving the MyBlogBand Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Chapel Hill, North Carolina, USA, provided that the foregoing shall not prevent MyBlogBand.com from seeking injunctive relief in a court of competent jurisdiction.
19. Statute of Limitations. 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 Software or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
20. Other. This Agreement is accepted upon your use of the MyBlogBand Website or any of the MyBlogBand Services and is further affirmed by your becoming a Member. This Agreement constitutes the entire agreement between you and MyBlogBand, L.L.C. and MyBlogBand.com regarding the use of the MyBlogBand Services. The failure of MyBlogBand, L.L.C. and MyBlogBand.com to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. MyBlogBand.com is a trademark of My Blog Band, L. L. C. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Please contact us at MyBlogBand@gmail.com with any questions regarding this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.