TERMS & CONDITIONS
EFFECTIVE MAY 27, 2020
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 TowerTunes. TowerTunes (collectively with our licensees and assignees referred to in this Agreement as "Company") is the owner and operator of this website, (the "Site").
This is a legal agreement between you and TowerTunes (“Company”). Company reserves the sole right at any time to modify, discontinue or terminate the Site and Services, or modify the Terms of Service without notice. It is your responsibility to check these Terms of Service periodically for changes. By continuing to use or access the Site and/or Services after Company makes and posts any such modification, you agree to be legally bound by the revised Terms of Service. You may not alter the terms and conditions of the Terms of Service without Company’s express written consent.
YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR TOWERTUNES ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY COMPANY. THE TERMS OF SERVICE SHALL APPLY AT ALL TIMES WHILE YOU UTILIZE THE SITE OR THE SERVICES.
The following terms shall have the following meanings for purposes of this Agreement:
"Account" means the portion of the TowerTunes Site on which a person who registers has access to the Services provided by TowerTunes.
"Site" means the website owned by TowerTunes and accessed through the domain name where Rights Holder has registered to digitally deliver music through TowerTunes according to this Agreement. By agreeing to this Agreement, any sound recordings made available on the TowerTunes Site, that Rights Holder as a Member makes available for digital delivery by TowerTunes according to the terms of this Agreement.
"Artwork" means album cover artwork and any other artwork relating to Rights Holder Content that Rights Holder provides to Tower Tunes. Any artwork that is provided by or on behalf of Rights Holder to TowerTunes will be deemed to have been cleared by Rights Holder unless Rights Holder promptly notifies TowerTunes in writing to the contrary.
"Digital Masters" means copies of Rights Holder Content in digital form, which TowerTunes may deliver through digital download, streams or burns, as individual tracks or as a whole album, pursuant to the terms and conditions of this Agreement.
"Member" means a person, including a Rights Holder, who registers through the TowerTunes Site and has an Account on the TowerTunes Site.
"Membership" means an account of a Member with the TowerTunes Site.
"Rights Holder Content" means sound recordings and underlying musical compositions that Rights Holder has made available to TowerTunes for digital delivery on the TowerTunes Site in accordance with this Agreement. Any sound recordings and the underlying musical compositions that are provided by or on behalf of Rights Holder to TowerTunes must be owned or controlled by Rights Holder and/or have been cleared by Rights Holder.
"Service" means any service offered by TowerTunes through the TowerTunes Site.
"Visitor" means a person who uses the TowerTunes Site who is not logged in as a member. A Visitor has limited access to the Site and is restricted from member areas of the Site.
In order to have an Account and have access to the services available from TowerTunes, you must be a Member. You become a Member by registering through the TowerTunes 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 be prompted to choose a username and password. You are entirely responsible for maintaining the confidentiality of your account log in credentials. 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 TowerTunes immediately if you suspect any breach of security or unauthorized use of your Membership.
TOWERTUNES WILL NOT BE LIABLE FOR AND 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 TOWERTUNES OR OTHERS DUE TO SUCH UNAUTHORIZED USE.
You may terminate your Membership at any time for any or no reason by notifying TowerTunes in writing in accordance with the notification section of this Agreement, or pursuant to any other method set forth on the TowerTunes Site. TowerTunes may terminate your Membership at any time for any or no reason, with or without prior notice or explanation, and without any liability.
TowerTunes reserves the right, but has no obligation, to monitor or screen Rights Holder Content or Artwork, both in real time and in TowerTunes’ archives. TowerTunes 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 Site, or otherwise terminate any use of the TowerTunes Site if TowerTunes 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 TowerTunes suspects or discovers on, through, or otherwise relating to TowerTunes’ Site and/or Services 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.
3.USE OF THE TOWERTUNES SITE
Rights Holder shall obtain and pay for any necessary clearances and licenses in the Territory for all Rights Holder Content and Artwork. Specifically, Rights Holder shall be responsible for and timely pay: (i) any royalties and other income due to artists, authors, co-authors, copyright owners, co-copyright owners, producers and other record royalty participants from sales or other uses of Digital Masters; (ii) all mechanical royalties payable to publishers and/or authors or co-authors of copyrighted musical compositions embodied in Digital Masters from sales or other uses of Digital Masters; (iii) all payments that may be required under collective bargaining agreements applicable to Rights Holder or third parties other than TowerTunes; and (iv) any other royalties, fees and/or sums payable with respect to the Rights Holder Content, Artwork, metadata and other materials provided by Rights Holder to TowerTunes.
If there is a change of circumstance as a result of which Rights Holder reasonably believes that it no longer has the rights necessary to authorize TowerTunes and any broadcasters to use any Rights Holder Content or Artwork as provided for herein, or Rights Holder reasonably believes that TowerTunes or its broadcasters continued use of any Rights Holder Content or Artwork will: (i) substantially harm Rights Holder's relations; (ii) violates the terms of any of Rights Holder's agreements with any applicable copyright owner, artist, producer or distributor; or (iii) be in violation of any law, rule or regulations, including without limitation, any copyright or other intellectual property law, then Rights Holder shall request withdrawal of such Right Holder Content or Artwork from the TowerTunes Site, and upon written notice to TowerTunes, withdraw any authorization for the broadcast or other use of such Rights Holder Content or Artwork. Following the receipt of written notice from Rights Holder, TowerTunes shall cease to offer such Rights Holder Content or Artwork for broadcast or other use and shall cause such cessation as soon as is commercially feasible after TowerTunes’ receipt of such notice of withdrawal. Rights Holder shall use commercially reasonable efforts to obtain all rights and licenses to use such withdrawn Rights Holder Content or Artwork and shall promptly notify TowerTunes if and when such Rights Holder Content has been cleared and is again authorized for use or distribution by TowerTunes and its broadcasters.
Whether on your Account or in any other use of the TowerTunes Site, Rights Holder agrees not to say, perform, post, transmit, cause the display or performance of, or otherwise make available any Rights Holder Content or Artwork that: (i) contains nudity, depicts or suggests sexual, violent, or illegal conduct, or reasonably under the circumstances (including without limitation under the laws of any jurisdiction in the United States, whether or not such laws are applicable to the Rights Holder Content or Artwork in question) might be deemed obscene, pornographic, violent, or harmful; (ii) reasonably under the circumstances might be deemed threatening, abusive, harassing, tortious, vulgar, hateful, or racially, ethnically, or otherwise offensive or discriminatory; (iii) is illegal; (iv) is tortious, defamatory, libelous, invasive of another person's privacy, or violates another person's publicity rights; (v) bears any false, disguised, or misleading origin; (vi) contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, network, or other equipment; or (vii) is confidential and you do not have a right to disclose.
Broadcasters who download music from TowerTunes are responsible for payment of any and all performance royalties to their performing rights organizations applicable to their particular geographic territory.
You agree not use the TowerTunes Site to: (i) harass or advocate harassment of another person or entity; (ii) perform any activities that violate, intentionally or unintentionally, any applicable state, local, federal, or international laws or regulations promulgated by governmental agencies that have the force of law; (iii) provide resources to or otherwise support any organization(s) designated by the United States government as a foreign terrorist organization under section 219 of the Immigration and Nationality Act; (iv) impersonate any person or entity or misrepresent in any way your affiliation with a person or entity; (v) transmit unsolicited mass e-mails, "spim," or "spam;" (vi) make any unsolicited contact with any Member by any means, whether through the TowerTunes Site or otherwise, using information from a Member's Account, or collect or store any information about other users or Members, for any purpose other than in furtherance of a Service in the normal course of using the TowerTunes Site; or (vii) without the express written consent of TowerTunes, use the TowerTunes Site in any way or for any purpose that, in the sole discretion of TowerTunes, has or might have the effect of competing with or displacing the market for the TowerTunes Site. You further agree not to attempt to do, or assist anyone else with doing or attempting, any of the foregoing or any act that reasonably might lead to the foregoing.
You also agree not do any of the following: (i) "frame" or "mirror" any portion of the TowerTunes Site , or access the TowerTunes Site in any way other than by the interfaces provided by TowerTunes; (ii) use any robot, spider, site search/retrieval application, other automatic device, or manual process, to "screen scrape," monitor, "mine," retrieve, index, or copy any portion of the TowerTunes Site (provided, however, that TowerTunes grants the operators of public search engines permission to use spiders to copy materials from the TowerTunes Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, and TowerTunes reserves the right to revoke these exceptions either generally or in specific cases); (iii) create Memberships or Accounts using any automated means, under false pretenses, or for any purpose other than in the normal course of using the TowerTunes Site; (iv) use any device, software, methodology, or routine to interfere with the proper working of the TowerTunes Site or servers, networks connected to the TowerTunes Site, or the use and enjoyment of the TowerTunes Site by any third party; (v) reverse engineer any of our technology, including without limitation any applets associated with the TowerTunes Site; (vi) access data of which you are not an intended recipient or log into a server or account on a network related to the TowerTunes Site that you are not expressly authorized to access; (vii) harvest or collect information about other TowerTunes Site users; (viii) restrict or inhibit any other person from using the TowerTunes Site, including without limitation by means of "hacking" or defacing any portion of the TowerTunes Site; (ix) use any portion of the TowerTunes Site as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (x) use the TowerTunes Site in any manner that could damage, disable, overburden, disrupt, or impair the TowerTunes Site, the Services, any TowerTunes server, or the network(s) connected to any TowerTunes server; (xi) in any other way interfere with or disrupt the proper operation of the TowerTunes Site or any other party's use and enjoyment of the TowerTunes Site; (xii) use the TowerTunes Site in any way or for any purpose that in a way that harms TowerTunes, any customer or advertiser of TowerTunes, or any other person; (xiii) engage in any activities related to the TowerTunes Site that are contrary to applicable laws or regulations; (xiv) disobey any applicable policies or regulations of networks connected to the TowerTunes Site; or (xv) attempt to do, or assist anyone else with doing or attempting, any of the foregoing or any act that reasonably might lead to the foregoing. You are granted a limited, nonexclusive right to create a hypertext link to the TowerTunes Site provided that such link is to the entry page (home page) of the TowerTunes Site and does not portray TowerTunes or any of its products, services or third party affiliates in a false, misleading, derogatory, or defamatory manner. You agree not to create any link to any other portion of the TowerTunes Site without written consent from TowerTunes and that this limited right may be revoked at any time for any reason whatsoever.
4. GRANT OF RIGHTS
(a) The rights granted hereunder shall include the distribution and sales (optionally, via third party outlets) of Recordings (as defined in Section 5 below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, cloud services and so-called “disc-on-demand” services. You and Company agree that the Internet consumer stores (“Consumer Stores”) (e.g., iTunes, Amazon, Spotify, Rhapsody) licensed to exploit your Recordings hereunder must be approved by you.
(b) By clicking the “I Agree” button, you irrevocably grant to Company, throughout the world (the “Territory”) and during the Term (as defined in Section 7 below), the non-exclusive right:
i to copy, distribute and otherwise exploit the Recordings by all means and media (whether now known or existing in the future)
ii to copy, distribute and otherwise exploit the Recordings through any and all Consumer Stores now operational or hereafter available;
iii to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you or the artists whose performances are embodied on the Recordings in connection with the Recordings and Company’s general business.
(c) You agree that you will not use the Site or Services to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. You acknowledge and agree that Company may disable access to and/or terminate your account and/or remove or disable access to any Recordings or any associated materials you provide to Company in the event that Company receives any claim that, if true, would constitute a violation of your representations and warranties hereunder. Please see the Copyright Policy for further information.
(d) You agree that Company may terminate your account if you violate the Terms of Service or, in Company’s good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.
The term “Recordings” shall be defined as the sound recordings and audiovisual recordings that you submit to Company at any time. Company, in its sole discretion, reserves the right to reject any materials (including, without limitation, Recordings, images and/or artwork) that you submit. You agree to submit all Recordings, images and artwork at your sole expense, in the format(s) required by Company or the Consumer Stores. Technical descriptions of such format(s) will be provided to you upon request.
6. THIRD PARTY OBLIGATIONS
(a) You shall be solely responsible for securing and paying for digital phonorecord delivery, mechanical, public performance and any other licenses (as applicable) required from musical composition copyright owners or their agents in connection with Company’s exploitation of rights hereunder, as well as royalties due to artists, producers and other persons who performed in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.
(b) For digital download sales in the United States, your payment typically includes the mechanical royalty on the underlying composition. In the case of the iTunes Match service, your payment includes a publishing portion that covers both the mechanical and public performance royalties. If you do not own or control the underlying composition(s) in your sound recording(s), it is your obligation to pay these publishing royalties to the person or entity that does.
(c) To the extent that Company permits you to select certain Recordings from your TowerTunes catalog to distribute free to fans or directly through your own website, you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries.
7.RIGHTS HOLDER CONTENT AND ARTWORK; AUTHORIZATION
(a).As between the parties, all right, title and interest in and to: (i) the Rights Holder Content; (ii) Artwork; (iii) the Digital Masters; (iv) the Clips; (v) all copyrights and other intellectual property rights embodied therein; and (vi) all materials furnished by Rights Holder, except as to any rights of TowerTunes (whether pre-existing or under this Agreement), shall remain the property of Rights Holder, it being understood that under no circumstances shall TowerTunes have any lesser rights than it would have as a member of the public.
(b).By submitting Rights Holder Content and Artwork to the TowerTunes Site, you hereby grant TowerTunes a worldwide, non-exclusive, royalty-free, sublicensable (and resublicensable through multiple levels), and transferable license to: (i) possess, use, reproduce, distribute, display, perform, and prepare derivative works of the Rights Holder Content and Artwork in connection with operation of the TowerTunes Site and TowerTunes’ (and its successors' and affiliates') businesses; (ii) convert Rights Holder Content delivered by Rights Holder into broadcast quality Digital Masters; (iii) perform and make short clips of the Rights Holder Content available by streaming ("Clips") promote the delivery of applicable Digital Masters; (iv) use and authorize TowerTunes’ broadcasters to use the names and likenesses of, and biographical material concerning, any Digital Master, artists, bands, producers and/or songwriters, as well as track and/or album name, and Artwork, in any marketing materials for the promotion and advertising of the applicable Digital Master which is offered for broadcast or other use under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the authorized exploitation of applicable Digital Masters); (v) at TowerTunes’ discretion, market, promote, advertise and electronically fulfill and deliver Digital Masters, as individual tracks or entire albums, and associated metadata to broadcasters who may use such Digital Masters in accordance with usage rules set forth by TowerTunes and any other laws, rules, regulations and policies similar to those set forth by the music services; (vi) display and electronically fulfill and deliver Artwork to broadcasters for use solely in conjunction with the applicable delivered Digital Master; (vii) possess, use, reproduce, distribute, display, perform, and prepare derivative works of any Rights Holder Content and Artwork and information (other than personally-identifiable information) available at any time from your Account for promoting the TowerTunes Site on its home page and/or in any other media, and (viii) possess, use, and reproduce (but expressly not to distribute, display, perform, or create derivative works from) any Rights Holder Content, Artwork and metadata as may be reasonably necessary or desirable for TowerTunes to exercise TowerTunes’ rights under the terms of this Agreement.
(c).You also hereby grant each user of the TowerTunes Site a non-exclusive license to access your Rights Holder Content and Artwork through the TowerTunes Site and to possess, use, reproduce, distribute, display and perform such Rights Holder Content and Artwork as permitted through the functionality of the TowerTunes Site and pursuant to this Agreement.
(d). If Rights Holder provides a parental advisory warning about a particular sound recording in the Rights Holder Content, TowerTunes shall use or forward such parental advisory information to broadcasters. Rights Holder shall be responsible for determining parental advisory warning status and shall advise TowerTunes as promptly as possible as to any change in the necessity of a parental advisory warning.
(e).The licenses granted by you in any given Rights Holder Content and Artwork pursuant to this section terminate within a commercially reasonable time after you remove such Rights Holder Content and Artwork from the TowerTunes Site or after your Membership terminates.
8.USE OF OTHER MEMBER’S RIGHTS HOLDER CONTENT
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 TowerTunes 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.
TowerTunes 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. TowerTunes reserves the right to terminate the Membership of infringers.
9. WARRANTIES; REPRESENTATIONS; INDEMNITIES
(a) You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, audiovisuals, images and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site and/or Consumer Stores’ websites shall not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; and that Company shall have the right to exploit same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity.
(b) You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach or a claim which, if true, would constitute a breach of the foregoing representations and warranties or any of the agreements contained in these Terms of Service, including reasonable attorneys’ fees and expenses.
(c) Company shall give you prompt notice of any claim that is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company, which approval shall not be unreasonably withheld. In the event you fail to retain approved counsel, Company may, if it so elects, defend itself at your cost and expense and you agree that Company may require your participation in such defense as a third party or otherwise and you hereby waive any objection or claim to compensation in respect of same. If a claim is made Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company’s prior written approval.
(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN AS EXPRESSLY SET FORTH IN THE TERMS OF SERVICE.
10.DIGITAL MILLENNIUM COPYRIGHT ACT
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the copyright agent identified below with: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the TowerTunes Site; (iv) your address, telephone number, and e-mail address; (v) 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 (vi) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Upon TowerTunes’ receipt of a valid notice, the allegedly infringing material will be removed or disabled and your notice will be forwarded to the person allegedly infringing your copyrighted material. That person may then send us a counter notification. If TowerTunes receives a valid counter notification, you will be notified and provided with a copy of the counter notification received. Unless TowerTunes receives notice from you within 10 days that you have filed an action seeking an injunction against the alleged infringer, TowerTunes may choose to replace and/or re-enable access to the material.
If you believe that you have received an erroneous notice that a work you posted infringes another's copyright, please provide the copyright agent identified below with: (i) your electronic or physical signature; (ii) a description of the work that you believe TowerTunes has removed or disabled access to in error; (iii) a description of where the work was located; (iv) your address, telephone number, and e-mail address; (v) a statement that you consent to the jurisdiction of Federal District Court for the judicial district where you live (or Lamar County, Alabama if you live outside of the United States), and that you will accept service of process from the person who provided the allegedly erroneous notification; and (vi) a statement by you, made under penalty of perjury, that you have a good-faith belief that the work was removed or disabled as a result of a mistake or misidentification of the material. You should contact an attorney before sending a counter notification to us as sending such a notice in error may subject you to civil liability.
The copyright agent can be reached as follows: Copyright Agent, TowerTunes, PO Box 147, Kennedy, AL 35574; Phone, 205-662-4826; Email, email@example.com. The foregoing procedure is exclusively for providing notice that your copyrighted material has been infringed or that any material you have posted has been removed or disabled in error. Any other communications sent to the copyright agent will be discarded.
11.FEES AND REMITTANCE
Viewing the public portions of the TowerTunes Site as a Visitor is free. Broadcasters registering as a Member and maintaining an Account for the purpose of browsing and/or downloading music content for radio broadcast is free.
For Artist Members, TowerTunes charges fees for providing enhanced or additional Services and for bandwidth and storage capacity utilized by the Member, as more specifically described on the TowerTunes Site. TowerTunes fees may change from time to time, so you should check the TowerTunes 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 TowerTunes to charge your credit or debit card to pay for any charges that may apply to your account as they accrue. You must notify TowerTunes 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 TowerTunes 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 TowerTunes. 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 TowerTunes net income.
12. LINKS TO OTHER WEBSITES
13. INTERSTATE AND INTERNATIONAL USE
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 TowerTunes Site may result in the transmission of data across state borders and/or international borders.
14. TOWERTUNES PROPRIETARY RIGHTS
You acknowledge and agree that all right, title and interest in the TowerTunes Site and all works of authorship and other materials contained on the TowerTunes 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 " TowerTunes Property") is exclusively the property of TowerTunes and/or its licensors and that we have granted you no license or rights whatsoever in or to any TowerTunes 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 TowerTunes Property, except for the purposes expressly provided in this Agreement, without TowerTunes’ prior written approval. If you copy or download any TowerTunes Property, you agree that you will preserve any copyright notices or other such notices contained therein.
You also acknowledge and agree that the TowerTunes names and logos and all related product and service names, design marks, and slogans appearing on the TowerTunes Site, along with the names and trademarks or service marks of third parties referenced on the TowerTunes Site (collectively, the "Marks"), are the exclusive property of TowerTunes 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.
You acknowledge and agree that, in the course of negotiating and transacting business with Company, you may become aware of certain otherwise confidential information related to Company’s business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential. You hereby expressly agree that Company shall have the right to provide information relative to the distribution of your Recordings hereunder to third parties, to aggregate such information in charts and other comparative informational materials, and to disseminate the same in any manner.
16. EFFECT OF TERMINATION
In the event of termination of this Agreement or a Member's use of the TowerTunes 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 TowerTunes 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 TowerTunes 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 TowerTunes 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 TowerTunes’ or its broadcasters use thereof violates or infringes the rights of another party. This defense and indemnification obligation will survive your use of the TowerTunes Web Site and any termination of this Agreement.
18.EXCLUSION OF WARRANTIES; ERRORS AND INTERRUPTIONS
TOWERTUNES PROVIDES THE TOWERTUNES Site "AS-IS," "WITH ALL FAULTS," "AS AVAILABLE," and "WHERE AVAILABLE AND PERMITTED." TOWERTUNES DOES NOT MAKE ANY EXPRESS WARRANTIES OR GUARANTEES, AND TO THE FULLEST EXTENT PERMITTED BY LAW TOWERTUNES, 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 TOWERTUNES 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. TowerTunes 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. TowerTunes makes a best effort to ensure only authorized and lawful downloads of its user content and is not responsible for unauthorized linking or access to any user content. In addition, the use of software, bots or scripts to access files by bypassing the TowerTunes user interface is strictly prohibited.
TOWERTUNES MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY CONTENT AVAILABLE ON THE TOWERTUNES SITE OR THE CONTENT OF ANY SITES LINKED TO THE TOWERTUNES 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 TOWERTUNES 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 TOWERTUNES SITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE TOWERTUNES 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 TOWERTUNES SITE. TOWERTUNES DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE TOWERTUNES SITE OR ANY HYPERLINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TOWERTUNES 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 TowerTunes Site will not be error free in all circumstances, that all defects in the TowerTunes Site may not be corrected, and that the operation of the TowerTunes Site may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of TowerTunes.
19.LIMITATION OF LIABILITY
TOWERTUNES 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 TOWERTUNES 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 TOWERTUNES SHALL NOT BE LIABLE FOR ANY CONTENT UPLOADED TO THE TOWERTUNES 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 TowerTunes Site is controlled and offered by TowerTunes from its facilities in the United States of America. TowerTunes makes no representations that the TowerTunes Site is appropriate or available for use in other locations. If you access or use the TowerTunes 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 Alabama law. THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS THE FEDERAL OR STATE COURTS SITTING IN ALABAMA. YOU AND TOWERTUNES CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. You agree that the TowerTunes Site shall be deemed solely based in Alabama and that the TowerTunes Site shall be deemed a passive website that does not give rise to personal jurisdiction over TowerTunes, either specific or general, in jurisdictions other than Alabama. 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 TowerTunes’ 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 TowerTunes 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 TowerTunes and its successors and assigns. Except as otherwise expressly provided in this Agreement, notice to TowerTunes shall be by U.S. mail or recognized national overnight delivery service at Attn: Legal Department, TowerTunes, 17911 Highway 96, Kennedy, AL 35574. 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.
TowerTunes 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 TowerTunes Site or any part of TowerTunes Site except as otherwise expressly provided in this agreement.
(a) The Site and Services may be used and accessed solely for lawful purposes. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services, including, without limitation, applicable common law, all relevant statutes, and the rules and regulations of the Office of Foreign Assets Control of the U.S. Department of the Treasury.
In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site and Services:
--Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Company content or materials;
--Use any metadata, meta tags or other hidden text utilizing a TowerTunes name, trademark, URL or product name;
--Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
--Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
--Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are, in the sole opinion of Company, unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including, without limitation, any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable;
--Destroy, interfere with or disrupt, or attempt to interfere with or disrupt, any web pages available on the Site, servers or networks connected to the Site or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
--Attempt to scan, probe or test the vulnerability of any Company system or network or breach, impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
--Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
--Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Company or other generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari), including, without limitation, any software that sends queries to the Site to determine how a website or web page ranks;
--Collect or store personal data about other users of the Site or Services without their express and explicit permission;
--Misrepresent or impersonate your affiliation with any person or entity, through pretext or some other form of social engineering or otherwise commit fraud;
--Use the Site or Services in any manner not permitted by the Terms of Service; or
--Instruct or encourage any other individual to do any of the foregoing or to breach and/or violate any of the Terms of Service.
(b) Company does not guarantee exploitation of the Recordings, which will depend on consumer preference, nor on the inclusion or participation of any given Consumer Store. Company reserves the right in its sole discretion to decline to engage in business with any given Consumer Store. Except as specifically set forth in the Terms of Service, Company shall have no obligations to you.
(c) Company shall not be deemed in breach of the Terms of Service unless you have given Company notice of the breach and Company has failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder.
(d) In no event will Company, its officers, directors, employees or agents be liable to you for any damages whatsoever, including, without limitation, indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use of the Site, Services, Company products or any Company content, no matter whether the damages are foreseeable and whether or not Company has been advised of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will Company’s aggregate liability to you exceed One Hundred Dollars ($100).
(e) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of Alabama excluding that body of law pertaining to the conflict of laws. Any legal action or proceeding arising under the Terms of Service shall be brought exclusively in courts located in Lamar County, Alabama, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The parties to this agreement waive their respective rights to a trial by jury. In the event that any provision in the Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of the Terms of Service will not be deemed a waiver of such right or provision. You may not assign the Terms of Service (by operation of law or otherwise) without the prior written consent of Company and any prohibited assignment will be null and void. Company may assign the Terms of Service or any rights or obligations hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that the Terms of Service and the rules, restrictions and policies contained herein, and Company’s enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Company. The Terms of Service, together with the rules and policies of Company, constitute the entire agreement between Company and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (i) by Company via email (in each case to your email address of record), (ii) a posting on the Site, or (iii) by you via email to or to such other address as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
(g) It is your responsibility to deliver all necessary information, metadata, songs, graphic files or any other information or music in the format required. You acknowledge that Company will not be obligated to furnish its services hereunder until receipt of said materials.
(j) Company reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason whatsoever.
Nothing in this agreement creates an agency, partnership, or joint venture. There are no other third party beneficiaries to this agreement.
TowerTunes 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 TowerTunes Site or any part of TowerTunes Site except as otherwise expressly provided in this agreement.