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ShandorMusic.com
- Terms Of Use Agreement |
Last Updated: September 29, 2011 |
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This Terms of Use Agreement (“Agreement”)
specifies the understandings and agreements between ShandorMusic.com and
its owner(s) (“SMC”), and each user (“You”, “Your”,
“Yourself”, “Visitor”, “Purchaser”)
of the ShandorMusic.com website (“SMC Site”). By virtue of
using the ShandorMusic.com website, You are agreeing to the terms of this
Terms of Use Agreement. This Agreement contains an arbitration clause.
If You do not agree, in whole or part, with this Agreement, You understand
that Your sole remedy is to cease Your use of the SMC website. |
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1. Disclaimer of Warranties.
The SMC Site is provided to its Visitors and Purchasers on an “as-is”
and “as-available” basis, only. SMC hereby disclaims all warranties
of any kind, express or implied, including, without limitation, the warranties
of merchantability, fitness for a particular purpose and non-infringement.
SMC makes no warranty that the SMC Site will be error free or that access
to the SMC Site will be continuous or uninterrupted. You understand that
Your use of the SMC Site is entirely and fully at Your own discretion
and risk. |
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2. Limitation of Liability. YOU
UNDERSTAND THAT SMC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, AS TO THE FITNESS OR OPERATION OF THE SMC SITE OR
THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON
OR IN ANY MANNER OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SMC SITE.
UNLESS OTHERWISE SPECIFIED IN WRITING, YOU EXPRESSLY AGREE THAT YOUR USE
OF THE SMC SITE IS AT YOUR SOLE RISK. In no event shall SMC be liable
with respect to any subject matter of this Agreement under any contract,
negligence, strict liability or other legal or equitable theory for: (i)
any special, incidental or consequential damages; (ii) the cost of procurement
or substitute products or services; (iii) for interruption of use or loss
or corruption of data; or (iv) FOR ANY AMOUNTS THAT EXCEED THE AMOUNTS
PAID BY YOU TO SMC UNDER THIS AGREEMENT. SMC shall have no liability for
any failure or delay due to matters beyond its reasonable control. The
foregoing shall not apply to the extent prohibited by applicable law |
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3. Responsibility of SMC Site Visitors
and/or Purchasers. SMC has not reviewed, and cannot review, all
of the material, including computer software, that might be posted to
the SMC Site, and therefore cannot be responsible for any such material’s
content, use or effects. By operating the SMC Site, SMC does not represent
or imply that it endorses any such posted materials, or that it believes
such posted material to be useful, accurate, or non-harmful. Although
SMC attempts to provide a virus and malware-free SMC Site, You are solely
responsible for taking precautions as necessary to protect Yourself and
Your computer systems from viruses, worms, Trojan horses, malware, and
all other harmful or destructive content that could be transmitted by
or from the SMC Site. Additionally, the SMC Site may contain content that
might be considered offensive or otherwise objectionable to some Visitors
and/or Purchasers, as well as content containing typographical mistakes,
and other errors. SMC disclaims any responsibility for any harm resulting
from the use of the SMC Site by Visitors to and/or Purchasers of product
offerings on the SMC Site, including from any downloading by those Visitors
and/or Purchasers of content there posted. |
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4. General Representation and Warranty.
You represent and warrant that (i) Your use of the SMC Site will be in
strict accordance with this Agreement and with all applicable laws and
regulations (including without limitation any local laws or regulations
in Your country, state, city, or other governmental area, regarding online
conduct and acceptable content, and including all applicable laws regarding
the transmission of technical data exported from the United States or
the country in which You reside), and (ii) Your use of the SMC Site will
not infringe or misappropriate the intellectual property rights of any
third party. |
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5. Indemnification. You agree to indemnify
and hold harmless SMC from and against any and all claims and expenses,
including attorneys’ fees, arising out of Your use of the SMC Site,
including but not limited to Your violation of this Agreement. |
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6. Linkage To and From Other Websites.
SMC has not reviewed, and cannot review, all of the content and material,
including computer software, made available by the websites and webpages
to which the SMC Site links, and/or from websites and webpages that link
to the SMC Site. SMC has no control over such non-SMC owned and/or operated
websites and webpages, and is responsible neither for their content nor
for any adverse effects that might result from their use. By linking from
the SMC Site to a non-SMC owned and/or operated website or webpage, SMC
neither represents nor implies that it endorses such website or webpage.
You are responsible for taking precautions as necessary to protect Yourself
and Your computer systems from viruses, worms, Trojan horses, malware
and all other harmful or destructive content that might result from Your
linking to another such site. SMC disclaims any responsibility for any
harm resulting from Your use of such linked-to and/or linked-from non-SMC
owned and/or operated websites and webpages. |
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7. License to Use. When a song
(“Item”) or songs (“Items”) is/are purchased by
You from SMC, a License to Use such Item or Items is granted to You, the
“Purchaser”, in accordance with the provisions stated below
in this Section 7. |
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7a) Such License to Use: |
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1) |
is for the personal listening use-only of the Purchaser;
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2) |
is non-transferable; |
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3) |
allows for unlimited copying by the Purchaser of the purchased Item(s)
for the personal use-only of the Purchaser (i.e., the Purchaser’s
license allows the Purchaser to copy the purchased Item(s) to any number
of the Purchaser’s own listening devices and/or media types –
such as personal computers, mp3 player devices, laptop computers, CDs,
etc.); and |
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4) |
conveys no other rights to the purchased Item(s) other than those expressly
stated within License to Use - Section 7a. |
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7b) Unless otherwise agreed to in writing between SMC, the
copyright holder(s) of the Items offered for sale, and an Item(s) Purchaser,
such SMC-provided License to Use PROHIBITS: |
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1) |
any and all types of commercial usage of the purchased Item(s); |
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2) |
copying of any purchased Item(s) that is/are to be given
away, with or without charge, to one or more non-purchasing party or parties
(as one example only, the purchaser may not make a compilation-type or
any other type of CD that includes any purchased Item(s) that is/are then
given away to an entity who has not directly purchased such Item(s) from
SMC); |
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3) |
allowing any purchased Item(s) to be accessed by, or submitted
to, any type of file-sharing website or other entity (such as but not
limited to, Internet-based radio stations and posting sites such as YouTube)
where the Item(s) may then be made available for non-purchasing parties
to listen to, download and/or copy without purchasing a License to Use
such Item(s) from SMC; and |
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4) |
any other usage of the purchased Item(s) that is not expressly
stated as allowable usage, within License to Use - Section 7a. |
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7c) If songs are purchased as part of a CD, or “Collection”,
the Purchaser’s usage rights for all content of such CD or Collection
are the same as those described for any Item or Items defined in this
Section 7 – License to Use. |
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7d) If a Purchaser sells, or gives away, to another party,
any of the Purchaser’s listening devices and/or media types upon
which a SMC-purchased Item or Items is installed or contained, the Purchaser
agrees that such purchased Item shall be removed from such Purchaser’s
listening device(s) and/or media type(s) before that listening device
or media type is sold or given away to another party, UNLESS THE COPY
OF THE ITEM(S) SO TRANSFERRED IS THE ONLY COPY OF THE ITEM(S) HELD BY
THE PURCHASER. The Purchaser acknowledges that failure to do so, whether
or not any monetary gain by the Purchaser is established, shall place
the Purchaser in violation of his/her License to Use such purchased Item(s),
and shall make the Purchaser liable to legal actions that can be brought
against him/her by SMC. |
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8. All Other Rights Retained. All
rights to the songs offered as purchasable Items on SMC, other than those
expressly conveyed to an Item(s) Purchaser in License to Use – Section
7a, are retained by the copyright holder of the Item(s). |
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9. Songs Sold “As-Is”. |
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9a) SMC provides You with access to a sample of each song
being offered for sale on the SMC Site. Each such sample song is created
by copying the exact sound file of the Item being offered for sale, then,
as a copy protection methodology, overlaying that copy with an intermittent,
random frequency, volume, and duration beep sound. Since each sample so
provided is a copy of the respective song Item being offered for sale,
the quality of the song file purchased shall be of an equivalent quality
to that of the SMC Site-provided sample. You therefore understand that
all songs offered and sold by SMC are done so on an “as-is”
basis. |
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9b) You agree that you understand that the song lengths
specified on the SMC Site are close approximations only, as different
listening devices may calculate and display any given song’s length
in slightly different means and/or fashions. In general, You should expect
that the length any SMC Site-offered song shall be very close to the approximate
length as specified on the SMC Site. |
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9c) You understand that purchases made from SMC are non-refundable. |
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10. Purchaser’s Age. As
a Purchaser of Item(s) offered for sale by SMC on the SMC Site, You hereby
attest that You are at least eighteen (18) years of age, are of sound
mind, and are voluntarily purchasing Your selected Item(s). |
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11. Intellectual Property. This
Agreement does not transfer from SMC to You any of SMC’s intellectual
property, and all right, title and interest in and to such intellectual
property shall remain solely with SMC and/or the copyright holders of
such intellectual property. The SMC logo, and any/all other trademarks,
service marks, graphics, artwork and logos used in connection with SMC
and/or the SMC Site are the intellectual property of SMC. Your use of
SMC grants You no right or license to reproduce or otherwise use any SMC
intellectual property, other than as specified in section 7a. of this
Agreement. |
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12. Revisions To Policy. SMC
reserves the right, at its sole discretion, to modify, replace, or otherwise
change in any manner, any part of this Agreement at any time. It is solely
your responsibility to check this Agreement periodically for changes.
Your continued use of or access to the SMC Site following the posting
of any changes to this Agreement constitutes acceptance by You of those
changes. SMC may also, at any time in the future, offer new Item(s) to
purchase, services, and/or features on the SMC Site. Such new Item(s)
to purchase, services, and/or features, shall be subject to the terms
and conditions of this Agreement. If any of the terms and/or conditions
of this Agreement shall be deemed, for any reason, invalid, void, or unenforceable,
that term and/or condition shall be deemed severable and shall not affect
the enforceability or validity of any of the remaining terms and/or conditions
of this Agreement. |
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13. Dispute Resolution. Any
dispute or claim arising from or related to this Agreement, its performance,
breach, or interpretation (including, but not limited to, issues related
to its validity or enforceability), shall be exclusively (except as stated
below) resolved by final binding arbitration before the American Arbitration
Association (AAA). All such arbitrations shall utilize AAA Commercial
Arbitration Rules, and one arbitrator shall be selected using AAA procedures.
The arbitrator so selected shall use every reasonable effort to minimize
discovery and to complete the arbitration process as expeditiously as
possible. The selected arbitrator shall render a written decision within
thirty (30) calendar days following the arbitration hearing. The arbitrator
will not award attorney’s fees, or punitive, incidental, consequential,
treble or other multiple or exemplary damages, and the parties hereby
agree to waive and not seek such damages. Either party may seek judicial
relief to compel the other party to comply with the provisions of this
Section, or injunctive or other equitable relief to protect its intellectual
property rights, provided (as long as it is not prohibited by applicable
law) that the remainder of the dispute or claim is submitted to arbitration.
The arbitration shall be held in San Diego, CA; both parties hereby give
their irrevocable consent to jurisdiction of courts of or in the State
of California, as well as processes of the AAA in California. The arbitration
proceedings shall be conducted in the English language and the arbitral
decision may be enforced in any court. The prevailing party in any action
or proceeding to enforce this Agreement shall be entitled to costs and
attorneys’ fees. If any part of this Agreement is held invalid or
unenforceable, that part will be construed to reflect the parties’
original intent, and the remaining portions will remain in full force
and effect. A waiver by either party of any term or condition of this
Agreement or any breach thereof, in any one instance, will not waive such
term or condition or any subsequent breach thereof. Awards shall be final,
binding and non-appealable (except on the minimal grounds required under
the Federal Arbitration Act or other applicable law). All awards may be
filed with one or more courts, state, federal or foreign having jurisdiction
over the party against whom such award is rendered or its property, as
a basis of judgment and of the issuance of execution for its collection.
Any dispute or claim arising from the use of the SMC website must be made
known to SMC, via email using the address provided on the SMC "Contact
Page", within fourteen (14) calendar days of the date of the issue
that is prompting the dispute or claim, or You waive your right to make
such a claim. |
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14. Governing Law. This Agreement shall
be deemed made in, governed by, construed, interpreted and enforced in
accordance with the laws of the State of California, U.S.A., without giving
effect to its conflicts of laws provisions or principles. |
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15. Entire Agreement. This
Agreement constitutes the entire agreement between SMC and You, and may
only be modified by a written amendment signed by an authorized executive
of SMC, or by the posting on the SMC Site of a revised version of this
Agreement. |
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