- Terms Of Use Agreement
Last Updated: September 29, 2011
This Terms of Use Agreement (“Agreement”) specifies the understandings and agreements between and its owner(s) (“SMC”), and each user (“You”, “Your”, “Yourself”, “Visitor”, “Purchaser”) of the website (“SMC Site”). By virtue of using the 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.
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.
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
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.
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.
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.
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.
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.
  7a) Such License to Use:
1) is for the personal listening use-only of the Purchaser;
2) is non-transferable;
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
4) conveys no other rights to the purchased Item(s) other than those expressly stated within License to Use - Section 7a.
    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:
      1) any and all types of commercial usage of the purchased Item(s);
      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);
      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
      4) any other usage of the purchased Item(s) that is not expressly stated as allowable usage, within License to Use - Section 7a.
    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.
    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.
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).
9. Songs Sold “As-Is”.
    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.
    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.
    9c) You understand that purchases made from SMC are non-refundable.
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).
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.
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.
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.
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.
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.