Last updated: March 29, 2013
IMPORTANT NOTICE TO USER:
PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service (“Agreement”) is a legal agreement between you (referred to herein as “you” or “your”) and Seconda Prattica LLC (“we”, “our”, or “us”) for access to and use of our website available at http://www.secondaprattica.org (the “Website”) and other related software, services, interactive features or downloads operated by us and that are available through the Website (whether accessed directly or through any software application) (collectively, the “Service”).
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHETHER OR NOT YOU ARE A REGISTERED USER OF OUR SERVICE. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES.
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS. IF YOU ARE ACTING ON BEHALF OF A COMPANY OR ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY.
1. The Store. The Service may offer for sale digitized versions of composed sheet music and other content (“Digital Materials”), and may include features and functionality that allow you to store on the Service and retrieve from the Service Digital Materials purchased or redeemed by you (“Purchased Digital Materials”).
2. Purchased Digital Materials.
A. Effective after our acceptance of your order for Digital Materials, we grant you a nonexclusive, nontransferable, nonassignable license to use Purchased Digital Materials solely for your personal, noncommercial use, subject to and in accordance with this Agreement and any additional rules we may provide on the Service.
B. You may (a) print one (1) physical copy of Purchased Digital Materials and (b) store, read and make four (4) digital copies of Purchased Digital Materials, in each case only for your personal, noncommercial use, subject to and in accordance with this Agreement. You represent, warrant, and agree that you will use Purchased Digital Materials only for your personal, noncommercial use. Except as set forth in this section, you represent, warrant and agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, or license or otherwise transfer or use any Purchased Digital Materials. You agree to take reasonable precautions necessary to prevent third parties from doing any of the foregoing prohibited actions. You are not granted any public performance, promotional use, commercial sale, resale, reproduction (except as set forth above) or distribution rights for any Purchased Digital Materials. You acknowledge that Purchased Digital Materials embody the intellectual property of us and/or third parties and are protected by law. You agree not to infringe the rights of the Purchased Digital Materials’ owners and to comply with all applicable laws in your use of Purchased Digital Materials. You do not acquire any ownership rights in the Purchased Digital materials as a result of downloading Purchased Digital Materials. Except for the rights explicitly granted to you in this section, all right, title, and interest in the Purchased Digital Materials are reserved and retained by us, and our licensors.
C. Digital Materials may include unique identifiers that are specific to you or your purchase (“Unique Identifiers”). You may not modify, reverse engineer, decompile or disassemble or otherwise tamper with Unique Identifiers.
D. When you purchase Purchased Digital Materials, you are directing us to store and manage such Purchased Digital Materials in your digital sheet music account on the Service, to the extent we, in our sole discretion, elect to continue to make such storage services generally available to all customers of the Service. We may use, access and retain the Purchased Digital Materials stored on the Service in order to provide the Service to you and enforce the terms of this Agreement, and you expressly give us all permissions we need to do so. We may change, suspend or discontinue storing Purchased Digital Materials at any time. We will endeavor to provide at least thirty (30) days prior notice on the Website of any planned discontinuation of the storage features of the Service; however, there may be unusual circumstances where we may no longer be able to store or provide you with access to Digital Materials. We encourage you to promptly download and print all Purchased Digital Materials immediately after your purchase. You agree that, in the event we suspend or discontinue storing Purchased Digital Materials, you will have no right to access such materials, and we shall have no obligation to deliver them to you.
E. From time to time, we may make available to you updated, corrected or modified versions of Purchased Digital Materials. You agree that the terms and conditions hereof shall also apply to any such modified versions that we provide or make available to you, as if the modified version were Purchased Digital Materials.
F. Use of Purchased Digital Materials may require the use of separate third party software (such as a PDF reader application), which you must obtain. Such third party software is governed by the license agreement provided by the licensor of such third party software and not this Agreement. You are solely responsible for ensuring that your computer, printer, and related equipment are in good working condition, have the necessary connectivity to access the Service, and that you have all third party software necessary to use Purchased Digital Materials.
3. The Publishing Program. If you wish to authorize us to promote, sell, and distribute composed sheet music and associated content you submit to us (“Your Compositions”), you must enroll in our Digital Print Publishing and Distribution Program (the “Publishing Program”). The Publishing Program, including all submissions of Your Compositions to us in connection therewith, is governed by a separate Publishing and Distribution Agreement (“Publishing Agreement”). If you participate in the Publishing Program, you agree that you are subject to all of the terms and conditions of the Publishing Agreement in addition to this Agreement.
4. Your Use of the Service.
A. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Content (defined below). We do not endorse or warrant, and are not responsible for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Service by anyone other than our authorized employees or spokespersons while acting in their official capacities.
B. The Service may contain links to other websites or services maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on thirdparty websites or services. You assume sole responsibility for your use of thirdparty links, websites, products and services.
C. You agree that (i) you will use the Service solely for your own, noncommercial (except to the extent you participate in the Publishing Program), personal use in accordance with this Agreement and in accordance with any specific rules or usage provisions specified by us on the Service, (ii) all information supplied by you to us will be true, accurate, current and complete, and (iii) you will review the latest version of this Agreement posted on the Service from time to time to check for amendments that may apply to you (as more fully described below). We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without liability.
D. You acknowledge and agree that your use of the Service, including, without limitation, the storage of any Purchased Digital Materials, data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to backup such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Service for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of this Agreement and/or any rule or policy of ours and/or any local, state, or federal law or regulation.
E. You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including, without limitation, any loss or damage which anyone may suffer) of any such breach.
F. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, nondelivery or failure to store any user data, communications or settings.
G. By connecting to the Service with a thirdparty service (e.g., Facebook), you give us permission to access and use information, content and/or material you have supplied to that service as permitted by that service, and to store your login credentials for that service.
H. Please remember that you are solely responsible for your interactions with other users of the Service. We reserve the right, but have no obligation, to monitor disputes between you and any other user of the Service, or any user’s action or inaction.
I. You represent, warrant, and agree that you will not:
(i) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state, national and international laws and regulations and treaties;
(ii) use the Service for the distribution, housing, processing, propagation, storage, or other handling of, any Content (as defined below) or other material prohibited by this Agreement, or any material that may create a risk of any loss or damage to any person or property, or any other material (including, without limitation, links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Service;
(iv) use the Service to export software or data in violation of applicable U.S. laws or regulations;
(v) sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose (except as expressly permitted by us in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Service or any Content on the Service or any Digital Materials;
(vii) distribute, publish, exhibit, or otherwise use the Service, in any manner and for any purpose not expressly permitted under this Agreement;
(viii) frame or utilize framing techniques to enclose the Service, or any portion thereof;
(ix) exploit the Service or collect any data incorporated in the Service in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Service by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites;
(xii) impersonate any person or entity, including, without limitation, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personal data about other users of the Service for commercial or any other purposes;
(xiv) post or otherwise make available irrelevant Content (as defined below), repeatedly post or make available the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(xv) attempt to gain unauthorized access to our computer systems (including any nonpublic areas of the Service) or engage in any activity that disrupts, diminishes the quality of, probes for vulnerability, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service);
(xvi) make available Content (as defined below) that in our opinion constitutes or contains "affiliate marketing," "link referral codes," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement, except to the extent such Content is provided to you by us or one of our affiliates for a purpose specifically authorized by us in writing;
(xvii) create or attempt to create multiple user accounts;
Digital Materials are final. To the fullest extent permitted by law, all purchases are nonrefundable. We do not accept returns of Digital Materials. If you are unable to complete a download of Purchased Digital Materials promptly after making a purchase, please contact us via email to the address specified on the Website. You bear all risk of loss after purchase and for any loss of Purchased Digital Materials that you have downloaded, including any loss due to a computer or hard drive crash.
B. Your right to any products that are available is conditional on our receipt of the appropriate payment for such products. If such payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, you agree that we reserve the right to cancel your order.
C.We attempt to be as accurate as possible in describing products (including pricing) offered for purchase; however, we do not warrant that all such descriptions are complete, current or errorfree. From time to time there may be information on the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after orders are submitted).
D. We reserve the right, without liability or prior notice, to revise, discontinue, or cease to make available any or all products or to cancel any order.
E. Purchased Digital Materials will be available for download promptly after purchase under your user account on the Service.
F. You acknowledge and agree that, unless otherwise agreed in writing by us, we will have no obligation to provide you with support or maintenance in connection with the Service or Purchased Digital Materials, or other materials provided through the Service.
9. Content in the Service.
A. You understand that all information and materials (including, without limitation, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) accessible as part of, or through the use of, the Service are the sole responsibility of the person from which such information originated. All such information is referred to as “Content”.
B. You acknowledge that Content presented to you as part of the Service may be protected by intellectual property rights which are owned by the persons and/or entities that provide that Content to us (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that Content, in writing.
C. We reserve the right (but shall have no obligation) to prescreen, review, flag, filter, modify, refuse or remove any or all Content.
D. You understand that by using the Service you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
E. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Service and for the consequences of your actions (including, without limitation, any loss or damage which we may suffer) by doing so.
F. Content that you create, transmit, or display while using the Service must be appropriate for the Service. We may reject, remove, or edit any Content that: (i) is unlawful, harassing, defamatory, abusive, hateful, threatening, obscene, harmful, tortious, libelous, or invasive of another's privacy; (ii) attacks the character or damages the reputation of other users, namecalls, insults, ridicules, mocks, electronically stalks or otherwise harasses another individual; (iii) contains material or language that is profane, pornographic, sexually graphic, ethnically offensive, “off color,” political, or propaganda; (iv) contains crude, vulgar or offensive images or nudity; (v) infringes or violates any party's rights, including, without limitation, using thirdparty copyrighted materials or the names or likenesses of others without appropriate permission and attribution, using thirdparty trademarks without appropriate permission or attribution or in a way that is likely or intended to cause confusion, or using or distributing thirdparty information (whether or not protected as a trade secret) in violation of a duty of confidentiality; (vi) contains any advertising, promotional materials, chain letters, spam, junk mail, or any other type of unsolicited mass email to people or entities that have not agreed to be part of such mailings; (vii) discloses or references any personally identifiable information belonging to you or a third party; (viii) depicts or describes any activities that would violate the personal privacy rights of others; (ix) impersonates any person or entity; falsely states or otherwise misrepresents an affiliation with any person or entity; intentionally omits, deletes, forges, or misrepresents transmission information, including, without limitation, headers, return mailing, and Internet protocol addresses; or otherwise manipulates identifiers to disguise the origin of any Content transmitted to the Service; (x) contains any worms, viruses, or other harmful, disruptive, or destructive files, code, or programs; (xi) interferes with, disrupts, or harms in any way the Service or any servers or networks connected to the Service; (xii) uses the Service for any illegal purpose, or violates any applicable local, state, national, foreign or international law or regulation, intentionally or unintentionally; (xiii) promotes drugs or alcohol, illegal or inappropriate activities or any other dangerous behavior that may result in harm; (xiv) posts on behalf of a banned user; or (xv) we otherwise determine to be inappropriate for the Service or inconsistent with our image and reputation.
10. Intellectual Property.
A. You acknowledge and agree that we (or our licensors) own all legal right, title and interest in and to the Service, including, without limitation, any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist) including, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, knowhow, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including, without limitation, the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material, and all intellectual property rights to the same, are owned or controlled by us, our licensors, or both.
B. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Service or any Digital Materials.
C. You agree that in using the Service, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
11. Grant of Rights.
A. You retain copyright and any other rights you already hold in Content which you upload or otherwise submit to, or make available on, the Service.
B. By uploading, submitting or otherwise making available Your Compositions, you grant us the rights described in the Publishing Agreement.
C. By posting, uploading, submitting or otherwise making available Content (other than Your Compositions), you give us a worldwide, perpetual, fullysublicensable (through multiple tiers), transferable, irrevocable, royaltyfree, and nonexclusive license to use, host, store, reproduce, adapt, modify, translate, rearrange, publish, publicly perform, publicly display, distribute and otherwise exploit such Content (in whole or in part) in any manner or media whatsoever, now known or hereafter developed, for any purpose whatsoever, including, without limitation, (i) in connection with our business and (ii) in connection with the business of our successors, subsidiaries, and their related companies. The Service is a public platform and other users of the Service may, and you hereby grant all users of the Service the right to, search for, see, and/or use any Content (other than Your Compositions) that you make publicly available through the Service to the extent permitted by the features and functionalities of the Service.
D. You agree that we may use your feedback, suggestions, or ideas in any way, including, without limitation, in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fullypaid up, royalty free license to use the feedback, suggestions, and ideas you provide to us in any way.
E. You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you to us in connection with this Agreement and that we have no obligation to do so on your behalf.
F. By submitting Content, you also grant us the right to use your name, picture, likeness, voice, and biographical information in connection with the use or publication of your Content.
G. In connection with Content you upload, submit, post, or otherwise make available via the Service, you affirm, represent, and warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use such Content in the manner contemplated by this Agreement. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant to us all of the rights granted herein.
H. You understand that we may (a) transmit or distribute your Content over various public networks and in various media; (b) make such changes to your Content as determined by us in our sole discretion (including, without limitation, changes to conform and adapt Content to the technical requirements of connecting networks, devices, services or media); and (c) display advertisements in connection with your Content and/or use your Content for advertising and promotional purposes. You agree that the rights and licenses you grant to us in this Agreement shall permit us to take these actions.
I. You represent and warrant to us that you have the full right, capacity, power and authority necessary to grant the rights and licenses granted herein.
12. Copyright Agent. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service; your address, telephone number, and email address ; 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; 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 are authorized to act on the copyright owner's behalf. Any notification by a copyright owner or a person authorized to act on such copyright owner's behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright infringement can be reached as follows:
Name: OA Music
Address: 6841 Addenbrook Blvd., New Albany OH, 43054
Telephone: (209) 7326632
Fax: (614) 2458603
We suggest that you consult your legal advisor before filing a notice with our copyright agent. You should note that there can be penalties for false claims under the DMCA.
14. Changes to Agreement; Additional Rules & Policies. We reserve the right to change, amend and/or modify this Agreement, in whole or in part, at any time, upon the provision of reasonable notice thereof to you, which may include sending you an email or posting an announcement of such modifications on the Service. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Service or as otherwise provided by us. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of this Agreement. If you use the Service after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
15. NO WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERRORFREE, VIRUSFREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU OR ANY THIRD PARTY SUBMITS, POSTS OR SENDS OVER THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR YOUR CONTENT AND THE CONSEQUENCES OF POSTING OR PUBLISHING IT.
16. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF US, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF OUR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, OR AGENTS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SERVICE OR ANY CLAIMS RELATING TO THIS AGREEMENT OR ANY MATERIALS PURCHASED OR OTHER CONTENT SHALL NOT EXCEED THE AMOUNTS, IF ANY, PAID BY YOU TO US DURING THE PAST TWELVE MONTHS IN CONNECTION WITH THE SERVICE OR PRODUCT RELATED TO YOUR CLAIM (OR, IF WE CHOOSE, TO SUPPLY YOU WITH ACCESS AND USE OF THE SERVICE AGAIN OR WITH A CREDIT TO PURCHASE ANOTHER PRODUCT OF EQUAL VALUE).
The Service is controlled and operated from facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable national, state, local or other laws, statutes, directives, rules, regulations, and all interpretations or orders of any government, administrative or regulatory authority or court, including but not limited to those related to export and import of software, technical information or services. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
17. Release and Indemnification. You agree to release, indemnify and hold harmless us, our parents, subsidiaries, affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including, without limitation, attorneys' fees, with respect to (i) your access, use or misuse of, or reliance upon, the Service, (ii) your actual or alleged violation or breach of this Agreement or rights of another, (iii) Content provided by you or through use of your account, and/or (iv) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder. For the avoidance of doubt, this section shall survive the termination of this Agreement.
18. California Waiver. If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
19. Term and Termination. This Agreement is effective until terminated by us or you. We shall have the right to terminate this Agreement including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. You may terminate this Agreement at any time by deleting your user account on the Service and discontinuing use of any and all parts of the Service. Upon termination of this Agreement for any reason, you shall immediately cease using the Service.
20. Governing Law and Venue for Disputes. This Agreement, and your relationship with us under this Agreement, shall be governed by the laws of the State of New York without regard to its conflict or choice of laws provisions. Any dispute with us, or our parents, subsidiaries, affiliates, officers, directors, employees, agents or affiliates, arising under or in relation to this Agreement shall be resolved exclusively through the federal or state courts located in New York County, New York (and courts with appellate jurisdiction therefrom), except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case we may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, we are able to offer the Service at the terms designated, and that your assent to this provision is an indispensable consideration to this Agreement.You also acknowledge and understand that, with respect to any dispute with us, our officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Agreement: (i) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and (ii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
21. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
22. No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and avoid and we, in our sole discretion, shall have the right to immediately terminate this Agreement.
23. Communications. You agree that we may communicate with you electronically. Such electronic communications may consist of email, notices posted on the Service, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
24. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter. All provisions that should by their nature survive the termination of this Agreement shall survive the expiration of this Agreement including, without limitation, the rights and licenses you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, your payment obligations, no class action, and no trial by jury. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. Third party owners of Digital Materials, if any, are intended thirdparty beneficiaries under this Agreement and may enforce this Agreement against you and invoke all rights hereunder. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY US TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.