Last Updated: _______________
TABLE OF CONTENTS
1. ACCEPTANCE OF TERMS
2. TERM AND TERMINATION
We may modify this Agreement from time to time without notice to you for any reason. We will provide or display notices of material changes on the Services and/or e-mail or notify you upon login about these changes – the form of such notice is at our discretion. Once we post or make available such changes on the Services, these changes become effective immediately, and if you use the Services after they become effective, it will signify your agreement to be bound by such changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
5. USER REGISTRATION
In order to access and use certain content, features or functionality of the Services, we may require that you register for the applicable Services, have a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, without limitation, your business address, business type, business website, use type at business, usage at business and revenue), email address, legal name, date of birth, country of residence, zip code, performing rights organization affiliation, tax id number, bank account information, stage name and/or affiliation(collectively, a “User Account”). You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. Further, if you elect to become a registered User of the Services, you are responsible for maintaining the confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. It is therefore critical that you do not share your User Credentials with anyone, and you should use particular caution when accessing your User Account from a public or shared computer so that others are not able to view or record your User Credentials or access your User Account. You agree to immediately notify 8PG of any unauthorized use of your User Credentials or User Account, or any other breach of security. We reserve the right to deny access, use and registration privileges to any User of the Services suspected of fraudulent or otherwise improper submissions, registrations or uses or if we believe there is a question about the identity of the person trying to access any User Account or element of the Services.
7. OUR OWNERSHIP RIGHTS
8. RULES FOR USE OF THE SERVICES
The Services are to be used solely for your non-exclusive, non-assignable, non-transferable, non-commercial and limited personal use and for no other purposes. You are solely responsible for your conduct in connection with the Services.
You must not:
You shall not submit, post, and/or otherwise make available through the Services any User Content (as such term is defined below) that:
9. THIRD PARTY SOCIAL MEDIA SERVICES
10. USER CONTENT
11. FEE-BASED SERVICES
12. ACCESS TO THE SERVICES; DEVICE REQUIREMENTS; USAGE RULES
13. NO RESPONSIBILITY TO REVIEW OR MONITOR
8PG assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time 8PG chooses in its sole discretion to monitor the Services, 8PG nonetheless assumes no responsibility for User Content, assumes no obligation to modify or remove any User Content, and no responsibility for the conduct of any User. However, we reserve the right to review any User Content and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Content, including, without limitation, any User Content that is or may be construed as violating this Agreement, or is deemed to be unacceptable to 8PG, as determined in 8PG’s sole discretion; provided, however, that 8PG shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. Further, you acknowledge, consent and agree that 8PG may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the law or legal process, (b) enforce this Agreement, (c) respond to claims that any content or information violates the rights of any third party, (d) respond to your requests for customer or technical service, or (e) protect the rights, property or personal safety of 8PG, Users or any third parties including acting in urgent circumstances.
14. DIGITAL MILLENNIUM COPYRIGHT ACT
Written notification of claimed infringement must be submitted to the following Designated Agent:
Name and Address of Designated Agent:
[ADDRESS LINE 2]
Email Address of Designated Agent: [_______________________]
If a counter-notice is received by our Copyright Agent, 8PG 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 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at 8PG’s sole discretion.
15. UNSOLICITED SUBMISSIONS
8PG and its employees do not accept or consider unsolicited sound recordings, compositions or any other creative materials (collectively, the “Submission”). If, despite our policy, you still have submitted unsolicited material to us then 8PG will not be obligated to treat your Submission as confidential or proprietary and, by making such a Submission, you will be deemed to have acknowledged that i) 8PG has no obligation and shall not be liable to you or to any person claiming through you based on such Submission and ii) you relinquish any claim whatsoever based upon your submission
[16. MY 8PG LICENSE AND RADIO LICENSE
If you are a licensee who has purchased a license from 8PG to publicly perform material in the 8PG repertory, you can manage your account information in connection with each of your licenses, by using the [My 8PG License or Radio License application made available by 8PG through the Site or the Apps]. To activate your My 8PG License or Radio License account, visit www.8PoundGorilla.com/music-user], click on the “Manage Your Account” link and follow the online instructions. Your use of My 8PG License and Radio License are made available as part of the Services and is subject to the terms and conditions of this Agreement, as well as any Additional Terms that may be made available in connection therewith. Please note that all terms and conditions related to your license of public performance rights from 8PG, including, without limitation, rate and payment terms, are set forth in the applicable license agreement entered into by you and 8PG at your time of your purchase. Please review the terms and conditions of the applicable license agreement carefully.]
For assistance with technical issues and other questions, please refer to and/or contact us via our online contact and submission page located at [www.8Poundgorilla.com/contact-us/public-wit].
18. THIRD PARTY SERVICES
19. PROMOTIONAL PARTNERS
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our sponsors or other promotional partners (collectively, “Promotional Partners”) found on or through the Services or via a hyperlinked website or platform. All such communication, interaction and participation is strictly and solely between you and such Promotional Partners and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Promotional Partners or any goods or services you may purchase or obtain from any Promotional Partners).
You agree to indemnify, defend and hold 8PG, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Promotional Partners, Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation of this Agreement, and/or (c) your User Content. 8PG reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
21. DISCLAIMER OF WARRANTIES
THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, THE SITE AND THE APPS, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, USER CONTENT ASSOCIATED WITH YOUR USE OF THE SERVICES. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT 8PG ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
22. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, 8PG, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, PROMOTIONAL PARTNERS, OPERATORS, SUPPLIERS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
23. GOVERNING LAW AND JURISDICTION
This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of Tennessee (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in Tennessee, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State of Tennessee and the County of Davidson and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, REGARDING YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
24. LIMITATION ON TIME TO FILE CLAIMS
ANY PROVISION WHICH MUST SURVIVE IN ORDER TO ALLOW US TO ENFORCE ITS MEANING SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT; HOWEVER, NO ACTION ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES, REGARDLESS OF FORM OR THE BASIS OF THE CLAIM, MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN (OR IF MULTIPLE CAUSES, FROM THE DATE THE FIRST SUCH CAUSE AROSE).
25. JURISDICTIONAL ISSUES; EXPORT CONTROL
The Services are controlled and operated by 8PG from its offices in the U.S. 8PG makes no representation that the Services are appropriate or available for use outside the U.S. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
This Agreement contains the entire understanding and agreement between you and 8PG concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. The terms “include,” “includes” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The failure of 8PG to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by 8PG without restriction, notice or other obligation to you.
This Agreement was last modified on the date indicated above and is effective immediately.