STU LAW GROUP DRAFT
October 22, 2014
Terms of Service
EFFECTIVE DATE: October 24, 2014
Welcome to WEDOITFORTHELOVEOFMUSIC.COM (also accessible at WDFLM.COM). These Terms of Service (the “Terms”) constitute a legally binding agreement between you (“User” or “you”) and WEDOITFORTHELOVEOFMUSIC.COM L.L.C. (“WDFLM” or “we”) regarding your use of services available at www.wedoitfortheloveofmusic.com or www.wdflm.com (the website and services are collectively referred to as the “Service”). Please read these Terms carefully to fully understand the Service and your contractual relationship with WDFLM. In addition, when you use certain features of the Service, you also will be subject to the Community Guidelines, terms, and agreements applicable to such features (“Policies”). If these Terms are inconsistent with any Policies, the terms in the relevant Policy will govern and control.
We may periodically make changes to these Terms and/or the Policies. By accessing or using the Service, you accept these Terms and the Policies and any modifications that we may make to these Terms or the Policies. It is your responsibility to review the most recent version of the Terms and the Policies frequently and to remain informed of any changes to them. If you continue to use the Service after we modify these Terms or any Policy, you will be deemed to have consented to the terms of the modified agreement for your use of the Service as of the date of the modification. If you do not agree to any provision of these Terms or the Policies, you must not use the Service.
WDFLM provides engaging music content and enlightening entertainment industry news on a 24/7 basis via the Service. Notably, we proudly and enthusiastically showcase several music artists weekly, allowing Users to expand their exposure to those who are striving to fulfill that unquenchable desire to create and share their talents. The Service also gives Users access to the established artists they crave through a feature known as the “Top 10 Countdown”. After viewing various uploaded music videos and/or songs, Users may vote, at their sole discretion, to determine which artists will make the cut to be spotlighted on the Service. Because we take enormous pride in giving underground and emerging artists a place to be seen and heard, the “Express Yourself” section of the Service allows Users to submit videos, songs, and artwork for objective feedback and constructive criticism. Artists will also be able to use the Service to post their respective performance schedules and purchase advertising space on the Service.
Additionally, in the very near future, we will open and begin promoting a dynamic online store where we will market various music products and related merchandise consistent with our business model. Artists, by way of a separate and distinct written agreement with WDFLM, may arrange for WDFLM to sell their proprietary goods, including, without limitation, music, clothing, accessories, and any specialty items we deem appropriate.
YOU MUST BE 18 YEARS OF AGE OR OLDER AND THE AGE OF MAJORITY IN YOUR JURISDICTION TO USE THE SERVICE. Use of the Service is void where prohibited. You represent and warrant that any profile information you submit is true and accurate; that you are 18 years of age or older and have attained the age of majority in your jurisdiction; and that you are fully able and competent to enter into, and abide by, these Terms. The Service is not intended for those under the age of 18.
In some limited instances, you will be required to establish a “User Profile” to access certain features of the Service, such as the video webpages (or portal) and any other significant Service functionalities (offerings) we may add which necessitate creating a User Profile. When you create your User Profile, you agree to (a) provide accurate, current, and complete information about you as may be prompted by registration forms on the Service (“Registration Data”); (b) maintain the security of any logins, passwords, or other credentials that you select or that are provided to you for use on the Service; and (c) maintain and promptly update the Registration Data, and any other information you provide to us, in an accurate, current, and complete manner.
You will also be required to “sign in” to vote on music, articles, stories and the like, by providing your name and e-mail address. Alternatively, you may also sign in via certain third party plug-ins, such as Facebook.com, Twitter.com, and Disqus.com.
If you use the Service on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf. You hereby agree to notify us immediately of any unauthorized use of your account or any other breach of security by e-mailing us at STAFF@WEDOITFORTHELOVEOFMUSIC.COM. You may not transfer your account to any third-party without WDFLM’s prior express written consent.
You will not: (a) use the Service for any unauthorized purposes, or employ any unlawful electronic means, methods or techniques designed to damage, disable, or destroy the Service; (b) access, monitor, or copy any content or information on the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our prior express written permission; (c) violate the restrictions in any robot exclusion headers on the Service or bypass or circumvent other measures employed to prevent or limit access to the Service; (d) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (e) "frame", "mirror," or otherwise incorporate any part of the Service into any other website without our prior express written authorization; (f) violate, whether directly or indirectly, any applicable local, state, national, or international laws, rules, regulations, or orders; (g) harvest or otherwise collect any information about Users, including, without limitation, e-mail addresses, without Users’ consent; (h) fail to deliver payment for items purchased by you; (i) fail to deliver items purchased from you; (j) manipulate the price of any item or otherwise interfere with other Users’ listings; or (k) circumvent or manipulate our fee structure.
a. User Profiles and other Social Media
As noted above, the Service may include various interactive features and services, including ratings or review functionality, forums, message boards, and similar services in which you or third-parties may send messages to Users and create, post, or store profile data, profile pictures, ratings or reviews, and other content on the Service (“Interactive Services”). You are solely responsible for your use of Interactive Services and agree to use them at your own risk. By using any Interactive Services, you agree not to post, transmit, distribute, upload, or otherwise disseminate through the Service any of the following:
We take no responsibility and assume no liability for any material posted, stored, or uploaded by you or any third-party, or for any loss or damage thereto. Although we have no obligation to screen, edit, or monitor any material posted on or transmitted through the Service, we reserve the right, and have absolute discretion, to remove, screen, and edit any material posted, stored, or transmitted on or through the Service at any time and for any reason without notice.
If you post material on or through the Service, then, unless we indicate otherwise, you (a) grant us and our subsidiaries and affiliates a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, transferable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display the material in connection with the provision of the Service to you and other Users; (b) grant us and our affiliates, subsidiaries, and sublicensees the right to use the name that you submit in connection with such material, if we choose; (c) represent and warrant that you own and control all of the rights to the material that you post, or you otherwise have the right to post such material to the Service; and (d) represent and warrant that the use and posting of material you supply does not violate these Terms, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for any third-parties.
b. WDFLM Postings
By separate written contract with WDFLM, Users may be granted permission to post listings of music, clothing, accessories, and other entertainment-related goods and merchandise available for purchase on the Service (a “WDFLM Post”). All WDFLM Posts must comply with these Terms and all Policies that WDFLM may make available and update from time to time.
For example, products that satisfy any of the following descriptions may not be listed in any WDFLM Posts:
c. Dealings related to WDFLM Posts
Your transactions, dealings, and correspondence with, or participation in promotions of, persons who place or are named or referenced in any WDFLM Posts, and any terms, conditions, warranties, or representations associated with such transactions, dealings, and correspondence, are solely between you and such third-party. WDFLM has no control over and does not guarantee (i) the quality, safety, or legality of items featured, promoted, marketed, advertised or sold on the Service; (ii) the truth or accuracy of any User-generated content or listings; (iii) the ability of a User to market or sell any items; the ability of a buyer to pay any applicable fees; or (iv) goods and merchandise being delivered, used, or returned in any particular condition.
NOTE: WDFLM is not responsible or liable for any loss or damage of any sort incurred as the result of any dealings, transactions, or correspondence between Users. If you enter into any kind of transaction with another User, WDFLM and its subsidiaries and affiliates are not responsible or liable for any action or inaction of you or any other party to such a transaction (including, without limitation, any party’s failure to perform, pay any amounts due, or deliver any products). Any fees or payments to be collected from Users by WDFLM relating to transactions on the Service will be set forth in the appropriate online store section of the Service, and all terms and conditions applicable to such fees or payments will be set forth in WDFLM’s “Fees and Refund Policy”. THE SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND YOUR USE OF ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, YOUR PURCHASE OF ANY GOODS OR MERCHANDISE IN A WDFLM POST IS AT YOUR OWN RISK.
Your use of the Service is free. However, we will charge you when you purchase an item through our online store. The fees charged by WDFLM will be conspicuously displayed in the appropriate places in the online store, and the terms and conditions applicable to any purchases made on the Service will be reflected in our Fees and Refund Policy (as may be amended by WDFLM from time to time), located here [a] and incorporated into these Terms by this reference. To the extent the Fees and Refund Policy conflicts with these Terms, the Fees and Refund Policy will govern and control. WDFLM may require Users to provide payment account credentials to WDFLM to allow WDFLM and other Users to pay into, and withdraw from, the applicable payment account (e.g., PayPal). Unless otherwise stated, all fees shall be in U.S. dollars. You are responsible for all fees associated with your use of the Service. If your payment method fails, or if you owe us any funds for your use of the Service, we may collect such fees using other collection mechanisms, such as retaining collection agencies and legal counsel.
To the extent required by applicable law, WDFLM will assess sales taxes on User purchases made via the online store portal of the Service.
Any User who creates a WDFLM Post, or otherwise makes available any product on the Service, assumes all risks of loss or damage to the product from any cause. Users who create WDFLM Posts, or otherwise make items available for sale to other Users, are responsible for obtaining and maintaining any and all appropriate insurance coverages.
Any materials, including, but not limited to, comments, suggestions, ideas, or other information, provided by you in the form of e-mail or other submissions to us (excluding material that you post on the Service in accordance with these Terms) (collectively “Submissions”), are non-confidential and you hereby grant to us perpetual, irrevocable, worldwide right and license to use your Submissions for any purpose without compensation or attribution to you.
We respect the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact the “Copyright Agent” designated below and provide the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. sec. 512 ("DMCA")): (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time and date the material that you claim is infringing was displayed on the Service; (3) your address, telephone number, and email address; (4) a 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; and (5) 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.
If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your user content, you may send a counter-notice containing the following information to the Copyright Agent: (1) your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and e-mail address, a statement that you consent to the exclusive jurisdiction of the federal courts located in Miami, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
Pursuant to DMCA, our designated Copyright Agent for notices of copyright infringement can be reached as follows:
Attention: Copyright Agent/DMCA Notices
1625 79th St. Causeway
Miami Beach, FL 33141
By e-mail: firstname.lastname@example.org
WEDOITFORTHELOVEOFMUSIC.COM L.L.C., WEDOITFORTHELOVEOFMUSIC.COM, WDFLM.com, any WDFLM logos, and any other trade names, company names, product names, service marks or service names, slogans, and copyrights contained on the Service are exclusive trademarks or copyrights of WDFLM and our suppliers or licensors (collectively, the “Marks”), and may not be used, copied, imitated, misappropriated, obfuscated, or altered, in whole or in part, without the prior express written permission of the applicable trademark or copyright holder (owner). To the extent the Service displays, broadcasts or references any non-proprietary copyrights and trademarks (registered or pending), including, but not limited to, product names, company names, or logos, you fully understand, acknowledge and agree that such non-proprietary copyrights and trademarks are the exclusive “intellectual property” of their respective owners. Reference to any non-proprietary products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
NOTE: You may print a copy of the information contained on the Service for your personal use only, but may not reproduce or distribute the text or graphics to others or substantially copy the information on your own server, or link to this Service, without prior express written permission of WDFLM. You may request permission by e-mailing a request to email@example.com
We, our affiliates, and our suppliers and licensors own all rights, title, and, interest in and to the Service, including, without limitation, the Marks. Except for the limited license and rights expressly granted to you in these Terms, nothing herein should be construed as granting to any User, by implication, estoppel, or otherwise, any license and rights to use any Mark without WDFLM’s or the respective owner’s prior express written authorization.
The restrictions herein also apply to any advertising or publicity pertaining to the sale and distribution of goods and materials on this Service without our prior express written permission. YOU ARE NOT AUTHORIZED TO USE ANY OF THE MARKS AS A HYPERLINK TO THIS SERVICE UNLESS YOU OBTAIN WDFLM’S PRIOR EXPLICIT WRITTEN PERMISSION, INCLUDING, AMONG OTHER THINGS, STRICT DIRECTIVES AS TO THE MANNER AND DURATION OF SUCH USE.
The Service may contain links to webpages and content of third parties ("Third-Party Content") as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over, any Third-Party Content. We undertake no responsibility to update or review any
Third-Party Content and can make no guarantee as to its accuracy or completeness.
Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including, without limitation, privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Service. YOU ACCESS AND USE THIRD-PARTY CONTENT AT YOUR OWN RISK.
The Service may contain advertisements and promotions from various third-parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third-party.
YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT ACCESSIBLE THROUGH THE SERVICE AND YOUR INTERACTIONS AND DEALINGS WITH ANY SERVICE USERS, IS AT YOUR SOLE RISK. THE SERVICE, AND ALL CONTENT AVAILABLE ON AND THROUGH THE WEBSITE OR SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WDFLM AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WDFLM DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR YOUR ACCESS TO ANY CONTENT OR THAT ANY WDFLM POSTING YOU PLACE (INCLUDING ANY POSTING OF PRODUCTS YOU WISH TO MAKE AVAILABLE, OR OTHER MESSAGE RELATING TO ANY POSTING) WILL BE SUCCESSFUL, UNCORRUPTED, OR COMPLETED WITHIN A REASONABLE AMOUNT OF TIME. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS TO, AND USE OF, THE SERVICE AND ANY CONTENT THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE WILL CREATE ANY WARRANTY REGARDING WDFLM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
NEITHER WDFLM NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WDFLM OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF WDFLM AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS THE GREATER OF (A) $100 OR (B) THE FEES PAID TO WDFLM FOR THE TRANSACTION GIVING RISE TO THE CLAIM. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Under these Terms, WDFLM shall be excused from performance, in whole or in part, (to the extent it is prevented from or delayed from performing), due to a chronic or severely disabling event or a series of severely disabling events (commonly known as a “Force Majeure”) caused by or resulting from, without limitation, (1) life-endangering acts of God or extremely hazardous elements of nature (e.g., perilous weather conditions); (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, (5) restrictive governmental or legislative actions or orders, and (6) other adverse business conditions beyond the reasonable control of WDFLM. In the event that WDFLM is temporarily unable to ship an item you purchased via the Service because of a Force Majeure, WDFLM will give you the option of deferring shipment or receiving a full refund of your charges.
You alone are responsible for your involvement or business dealings with other Users. WDFLM reserves the right, but has no obligation, to monitor disagreements between you and other Users. If you have a dispute with one or more Users, you irrevocably and forever release WDFLM (and our officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way related with such disputes. 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR SETTLEMENT WITH THE DEBTOR.” IF YOU ARE A NON-CALIFORNIA RESIDENT, YOU WAIVE ANY STATUTES OF SIMILAR EFFECT.
Notwithstanding any provision of these Terms, we reserve the right, without notice and in our sole discretion, to terminate your license to use the Service and to block, restrict, and prevent your future access to, and use of, the Service. Additionally, we reserve the right to modify, discontinue, and restrict, temporarily or permanently, all or part of the Service without notice in our sole discretion. Neither we nor our suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of the Service. As of the Effective Date stated above, the Service is provided to you for free (excluding any online store sales), but we reserve the right to implement fees at any time for additional offerings or premium features/functionalities on the Service by providing you with written notice.
By using the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. Any provision in these Terms that by its very nature should survive the termination of your license to access the Service or any termination of these Terms (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination.
These Terms are governed by the laws of the State of Florida, excluding its conflict of laws principles that would require the application of the laws of another State. Any controversy or claim arising out of or relating to the Service or these Terms must be commenced within one (1) year after the claim arose and will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Miami, Florida, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Florida law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as the same may be necessary to protect the party's rights or property pending the completion of arbitration.
These Terms and the Policies constitute the entire agreement between you and WDFLM concerning the Service. These Terms supersede all prior agreements, understandings, and communications (oral and written) between you and WDFLM concerning the subject matter of these Terms.
If you have any questions or concerns about the Service, these Terms, or any Policy, you may contact us through our website by [clicking here], or by writing to us as follows:
Attn: Customer Service Dept.
1625 79th St. Causeway
Miami Beach, FL 33141
[a]Insert link to Fees and Refund Policy.