This Terms of Service Agreement ("Agreement") describes the legal relationship between you (an individual, representing yourself, or if applicable, acting as legal representative for a band, group, company or other legal entity) ("you," "your," "Rights Holder" and/or "Member" is applicable) and AirPlay Direct, LLC. AirPlay Direct, LLC (collectively with our licensees and assignees referred to in this Agreement as "AirPlay Direct") is the owner and operator of this website (the "AirPlay Direct Site").
BY CLICKING "I AGREE," YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CLICK ON THE "I DECLINE" BUTTON. IF YOU CLICK ON THE "I DECLINE" BUTTON, YOU SHALL NOT BE ABLE TO REGISTER FOR OR USE THE SERVICES OR THIS WEBSITE.
Although AirPlay Direct may attempt to notify you when some changes are made to this Agreement, we may modify this Agreement at any time and from time to time in our sole discretion without notice to you. You should periodically review this Agreement carefully in order to make sure that you are aware of the most current terms and conditions for the use of the AirPlay Direct Site because any use or viewing of the AirPlay Direct Site by you after any change to this Agreement, whether or not you have reviewed the amended Agreement, constitutes your acceptance of the Agreement as changed. This Agreement as amended from time to time shall remain in full force and effect while you are a Member and anytime you use or access the AirPlay Direct Site.
The current version of this Agreement is March 1, 2010. This Agreement applies to your access to and use of this website.
In order to have an Account or use some features of the AirPlay Direct Site, you must be a Member. You become a Member by registering through the AirPlay Direct Site. You agree to provide accurate and complete information when registering and to keep such Account information updated.
When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You are solely responsible for the activity that occurs through your Membership, and you agree to keep your password secure. You agree not to allow any other person to use your password or Membership, and you agree never to use another Member's password or Membership. You agree to notify AirPlay Direct immediately if you suspect any breach of security or unauthorized use of your Membership. AIRPLAY DIRECT WILL NOT BE LIABLE FOR, AND AIRPLAY DIRECT EXPRESSLY DISCLAIMS, ANY COSTS OR LOSSES CAUSED BY ANY UNAUTHORIZED USE OF YOUR MEMBERSHIP, BUT YOU MAY BE LIABLE FOR THE COSTS OR LOSSES OF AIRPLAY DIRECT OR OTHERS DUE TO SUCH UNAUTHORIZED USE.
You may terminate your Membership at any time for any or no reason by notifying AirPlay Direct in writing in accordance with the notification section of this Agreement, or pursuant to any other method set forth on the AirPlay Direct Site. AirPlay Direct may terminate your Membership at any time for any or no reason, with or without prior notice or explanation, and without any liability.
AirPlay Direct reserves the right, but has no obligation, to monitor or screen Rights Holder Content or Artwork, both in real time and in AirPlay Direct's archives. AirPlay Direct shall have the right in its sole discretion to: (i) remove any material that in its sole opinion may violate, or that is alleged to violate, any applicable law or this Agreement; (ii) remove an Account, suspend or terminate a Membership, or suspend or terminate a Member's and/or Rights Holder's access to or use of any other portion of the AirPlay Direct Site, or otherwise terminate any use of the AirPlay Direct Site if AirPlay Direct believes or determines in its sole discretion that such use is unlawful and/or prohibited by this Agreement; and (iii) inform law enforcement agencies of any illegal activity or material AirPlay Direct suspects or discovers on, through, or otherwise relating to AirPlay Direct Site and provide law enforcement officials with all requested information about the Membership from which the illegal activity or material originated, including without limitation voluntarily providing to such law enforcement agencies copies of any Rights Holder Content or Artwork associated with such Member.
You acknowledge and agree that all right, title and interest in the Rights Holder Content and Artwork of any other Member is exclusively the property of that Member and/or his or her licensors and that except as otherwise provided in this Agreement such Member has granted you no license or rights whatsoever in or to any Rights Holder Content and Artwork except the right to view such Rights Holder Content and Artwork as is displayed in the Member's Account.
You agree not to modify, copy, distribute, transmit, sell, transfer, broadcast, circulate, display, perform, reproduce, publish, license, create derivative works from, or otherwise use in any other way, in whole or in part, any Rights Holder Content and Artwork of another Member other than in the normal course of using the AirPlay Direct Site or as otherwise allowed by this Agreement.
You also acknowledge and agree that, as between you and another Member, the names and logos and all related product and service names, design marks, and slogans of such other Member appearing on his or her Account or any Rights Holder Content or Artwork are the exclusive property of that Member and that such Member grants you no license or rights whatsoever therein except as otherwise agreed between you and such Member or as otherwise allowed by this Agreement.
AirPlay Direct respects the intellectual property of others, and we expect and require that our users do the same. You may not say, perform, post, transmit, cause the display or performance of, or otherwise make available any Rights Holder Content or Artwork that infringes any copyright, patent, trademark, trade secret, or other proprietary or intellectual property right of any party. AirPlay Direct reserves the right to terminate the Membership of infringers.
Viewing the public portions of the AirPlay Direct Site as a Visitor, registering as a Member, and having an Account are free. AirPlay Direct charges Members fees for providing enhanced or additional Services and for bandwidth and storage capacity utilized by the Member, as more specifically described on the AirPlay Direct Site. AirPlay Direct's fees may change from time to time, so you should check the AirPlay Direct Site regarding such fees regularly. All fees shall be at the then current prices. Upon registering for use of the Services, you must choose to pay either by direct charge to a credit or a debit card, and, in doing so, you authorize AirPlay Direct to charge your credit or debit card to pay for any charges that may apply to your account as they accrue. You must notify AirPlay Direct of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit AirPlay Direct from charging your account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by AirPlay Direct. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed, other than taxes based on AirPlay Direct's net income.
If Rights Holder provides a parental advisory warning about a particular sound recording in the Rights Holder Content, AirPlay Direct shall use or forward such parental advisory information to broadcasters. Rights Holder shall be responsible for determining parental advisory warning status and shall advise AirPlay as promptly as possible as to any change in the necessity of a parental advisory warning.
You consent to the collection and processing of personal information in the United States regardless of where you are located. You acknowledge that communications made using the AirPlay Direct Site may result in the transmission of data across state borders and/or international borders.
You acknowledge and agree that all right, title and interest in the AirPlay Direct Site and all works of authorship and other materials contained on the AirPlay Direct Site, including without limitation any software, data, text, photos, pictures, graphics, images, audio and video clips, logos, icons, and links, and the selection and arrangement thereof, other than Content (collectively, the "AirPlay Direct Property") is exclusively the property of AirPlay Direct and/or its licensors and that we have granted you no license or rights whatsoever in or to any AirPlay Direct Property except as expressly set out in this Agreement. You may not modify, copy, distribute, transmit, sell, transfer, broadcast, circulate, display, perform, reproduce, publish, license, create derivative works from, or otherwise use in any other way for commercial or public purposes, in whole or in part, any AirPlay Direct Property, except for the purposes expressly provided in this Agreement, without AirPlay Direct's prior written approval. If you copy or download any AirPlay Direct Property, you agree that you will preserve any copyright notices or other such notices contained therein.
You also acknowledge and agree that the AirPlay Direct names and logos and all related product and service names, design marks, and slogans appearing on the AirPlay Direct Site, along with the names and trademarks or service marks of third parties referenced on the AirPlay Direct Site (collectively, the "Marks"), are the exclusive property of AirPlay Direct or such third parties and that we have granted you no license or rights whatsoever in or to any Marks. You agree not to use any Marks, including without limitation any use as or in metatags on other web sites, without our prior express written consent and/or the prior express written consent of the owner of the applicable Mark.
In the event of termination of this Agreement or a Member's use of the AirPlay Direct Site or Services, all fees paid in advance by the Member shall be forfeited. The expiration or earlier termination of this Agreement shall not relieve Rights Holder or AirPlay Direct of their respective obligations to make any payments with respect to the sale or other use of Digital Masters in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement. Any terms of this Agreement which by their nature should survive shall survive the discontinuation, expiration or termination of this Agreement.
You agree to defend, indemnify, and hold AirPlay Direct and its directors, officers, employees, agents, and affiliates harmless from all claims, losses, damages, obligations, and costs (including without limitation reasonable attorney fees and expenses), arising from or related to: (i) your use of the AirPlay Direct Web Site; (ii) your breach of any provision of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property right, or privacy right; or (iv) any claim that any Digital Master, sound recording or Rights Holder Content, Artwork, metadata or any other materials provided or authorized by or on behalf of Rights Holder hereunder or AirPlay Direct's or its broadcasters use thereof violates or infringes the rights of another party. This defense and indemnification obligation will survive your use of the AirPlay Direct Web Site and any termination of this Agreement.
AirPlay Direct PROVIDES THE AirPlay Direct Site "AS-IS," "WITH ALL FAULTS," "AS AVAILABLE," and "WHERE AVAILABLE AND PERMITTED." AirPlay Direct DOES NOT MAKE ANY EXPRESS WARRANTIES OR GUARANTEES, AND TO THE FULLEST EXTENT PERMITTED BY LAW AirPlay Direct, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, WORKMANLIKE EFFORT, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT AirPlay Direct KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. AirPlay Direct does not guarantee or warrant that any file available for downloading from the webSite will be free from infection, viruses, worms, Trojan horses, or other code that manifests contaminating or destructive properties.
AirPlay Direct MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF any CONTENT available on the AirPlay Direct site OR THE CONTENT OF ANY SITES LINKED TO the AirPlay Direct Site AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF the AirPlay Direct Site, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM the AirPlay Direct Site, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH the AirPlay Direct Site BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, PERFORMED, OR OTHERWISE MADE AVAILABLE VIA THE AirPlay Direct SITE. AirPlay Direct DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE AirPlay Direct SITE OR ANY HYPERLINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND AirPlay Direct WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
You may have additional consumer rights under your local laws that this Agreement cannot change. You acknowledge that the operation of the AirPlay Direct Site will not be error free in all circumstances, that all defects in the AirPlay Direct Site may not be corrected, and that the operation of the AirPlay Direct Site may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of AirPlay Direct.
AirPlay Direct WILL NOT BE LIABLE IN ANY EVENT TO YOU (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER AirPlay Direct WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES OR THAT DIRECT DAMAGES WOULD NOT BE A SATISFACTORY REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, BUT THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT AirPlay Direct SHALL NOT BE LIABLE FOR ANY CONTENT UPLOADED TO THE AirPlay Direct SITE OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THESE LIMITATIONS APPLY EVEN IF THE REMEDY AVAILABLE TO YOU DOES NOT FULLY COMPENSATE YOU FOR YOUR LOSS OR FAILS OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
The AirPlay Direct Site is controlled and offered by AirPlay Direct from its facilities in the United States of America. AirPlay Direct makes no representations that the AirPlay Direct Site is appropriate or available for use in other locations. If you access or use the AirPlay Direct Site from other jurisdictions, you do so at you own volition and risk, and you are responsible for compliance with local law.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement and the remainder of this Agreement shall continue in full force and effect.
This Agreement is governed by Tennessee law, excluding Tennessee 's choice-of-law rules. THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS THE FEDERAL OR STATE COURTS SITTING IN NASHVILLE, TENNESSEE. YOU AND AirPlay Direct CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. You agree that the AirPlay Direct Site shall be deemed solely based in Tennessee and that the AirPlay Direct Site shall be deemed a passive website that does not give rise to personal jurisdiction over AirPlay Direct, either specific or general, in jurisdictions other than Tennessee. A printed version of this Agreement shall be admissible in judicial or administrative proceedings. Nothing in this agreement limits either party's ability to seek equitable relief. In the event of any litigation or other proceedings in connection with AirPlay Direct's enforcement of any provision of this Agreement or arising from or related to the Service the prevailing party shall be entitled to recover from the non-prevailing party all costs incurred, including staff time, court costs, attorney's fee and all other related expenses in such litigation or proceedings. In the event of a non-adjudicative settlement of litigation between the parties or a resolution of dispute by arbitration, the term "prevailing party" shall be determined by that same process.
Any claim related to this Agreement or the AirPlay Direct Site may not be brought unless made within the one-year period beginning on the date when the claim first could be filed. If it is not filed within such time, then that claim is permanently barred. This applies to you and your successors as well as to AirPlay Direct and its successors and assigns. Except as otherwise expressly provided in this Agreement, notice to AirPlay Direct shall be by U.S. mail or recognized national overnight delivery service at Attn: Legal Department, AirPlay Direct, LLC, 24 Music Square West, Nashville TN 37203, with a copy to Geoffrey P. Vickers, Esq., Baker Donelson Bearman Caldwell & Berkowitz, PC, Suite 800, 211 Commerce Street, Nashville, TN 37201. We do not accept e-mail notices. Notice to you may be made by e-mail to the email address you provide during the registration process, by U.S. mail or recognized national overnight delivery service to the address provided during the registration process.
Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose, and the rest of this agreement will not change.
Nothing in this agreement creates an agency, partnership, or joint venture. There are no other third party beneficiaries to this agreement.
AirPlay Direct may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not transfer to anyone else, either temporarily or permanently, any rights to use the AirPlay Direct Site or any part of AirPlay Direct Site except as otherwise expressly provided in this agreement.