LOCUSIC TERMS OF USE
1. Agreement. This is a binding agreement ("Agreement") between you ("you" or "your") and Locusic, LLC ("Locusic", "us", "we" or "our"). You acknowledge that you are at least 13 years of age and that all of the information you provide through the Locusic.com website ("Website"), applications ("Applications") and services (the Website, Applications and other Locusic services being collectively referred to as the "Services") shall be correct and complete.
IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THIS AGREEMENT. This Agreement governs your use of the password-protected portions of the Services. Locusic offers the Services only upon your unconditional acceptance of the terms and conditions without modification. You may be required to agree to additional terms to access additional features of the Services. In the event such additional terms conflict with the terms of this Agreement, such additional terms shall control. From time to time, Locusic may change the terms of this Agreement and/or discontinue the Services at any time, without notice or liability to you. All such modifications shall become effective immediately. It is your responsibility to check for any changes each time you access the Services. Your continued use of the Services after the posting of any changes shall constitute your agreement with, and acceptance of, such changes. In the event you do not agree to abide by the terms of this Agreement, you must not use the Services in any manner. MISUSE OF THE SERIVCES MAY SUBJECT YOU TO CIVIL AND/OR CRIMINAL LIABILITY.
2. Locusic. Services shall include, but shall not be limited to, our layout, design, navigation, database of music, videos, data and other information associated with the Services (collectively "Content"), network of artists, advertisers, distributors and customers ("Customers"), and software used in association therewith.
3. Submission Guidelines and Warranties. By submitting any audio, video, graphic, image or text content (collectively "Work") to the Services, you warrant that:
a. You are the owner of all right, title and interest, including the copyright in all of the audio and video content contained within the submitted Work(s), OR that you have obtained fully executed written assignments and/or licenses ("Licenses") from the then-current owner(s) of all of the submitted Works that you do not own, and that the Licenses allow you and Locusic to use the Work on the Services and as otherwise contemplated under this Agreement;
b. You have written releases ("Releases") from all individuals, or their legal guardians, depicted in, or identifiable from, the Work and that the Releases allow you and Locusic to use the Work on the Services and as otherwise contemplated under this Agreement;
c. The Work, and the use of the Work on the Services and as otherwise contemplated under this Agreement, does not infringe any intellectual property rights of any entity;
d. The Work does not disparage any person, entity or product; and
e. Production, distribution and presentation of the Work on the Services and as otherwise contemplated under this Agreement, is not in violation of any local, state or federal law.
4. Impermissible Activity. You shall not use the Services or any Locusic server to transmit any data which: (1) is unlawful, threatening or abusive; (2) encourages criminal or other activity which would reasonably give rise to civil liability or otherwise violate any local, state, federal or international law; (3) is false, deceptive or fraudulent; (4) is vulgar, hate-related, profane, obscene or offensive; (5) is pornographic or indecent; (6) contains false or misleading information (7) inhibits another user from use or enjoyment of the Services; (8) is defamatory or libelous; (9) contains a virus or surreptitious code; or (10) contains any type of commercial component or advertising (other than as a paid advertiser of the Services); (11) includes any type of Spam, chain letter or non-employment related solicitation or advertising; (12) includes trade secrets, encrypted material, passwords or information on how to access password-protected material; (13) includes personally identifiable information regarding any person under 18 years of age, or (14) constitutes or promotes any form of intellectual property infringement, including, but not limited to copyright infringement. You also shall not (1) copy, reverse engineer, transfer, allow unauthorized access to or otherwise misuse the Services; (2) use the Services except as specifically authorized under this Agreement; (3) attempt to access data not intended for you; (4) probe vulnerabilities of the Services for any reason; (5) interfere with the operation of the Services or with any third party's access to, or enjoyment of, the Services, including, but not limited to, infecting the Services, or any of its servers, or any other user of the Services with a virus, worm, Trojan horse or other malware; (6) attempt to obtain unauthorized access to any account, hardware, system or network related to Locusic; (7) modify, adapt or create derivative works based on the Services or any content provided thereon or contained in any Locusic servers or systems; (8) disrupt any account, hardware, system or network related to Locusic; (9) attempt to extract any data from the Services other than data expressly made available to you by Locusic; or (10) use any software related to Locusic to develop any software which provides you or any other person or entity, unauthorized access to the Services.
You are solely responsible for all of your activities in relationship to the Services, including the contents of all Works you submit, and the consequences thereof. You agree to indemnify, defend and hold Locusic harmless for any liability arising from your use of the Services. While Locusic respects your privacy, you hereby acknowledge that this Agreement creates no reasonable expectation of privacy in any Work(s) you submit. Locusic may, but is under no obligation to, use blocking and/or filtering software and other monitoring devices to prevent the dissemination of unsolicited electronic communications (spam). You may not use the Services in association with such spam, any computer viruses or any other potentially damaging computer code. Locusic will prosecute violations of this provision to the fullest extent allowed by law and reserves the right to take additional action regarding any such activity or conduct.
Such additional action may include recovery of costs and expenses associated with identifying offenders and preventing their access to the Services as well as lost profits, damages, court costs and attorney fees associated with repairing any damaged software or hardware. Notwithstanding any provisions of Locusic's Privacy Policy, Locusic reserves the right to report the transmissions of any data or Work(s) which it believes violate any law or regulation to appropriate law enforcement officials, regulators, or other third parties, and to assist, and provide information to, law enforcement prosecuting users involved in criminal violations of the foregoing.
5. Your Account. To add Work to the Services and/or obtain access to certain features of the Services, you must complete an online registration form to open an account ("Account") on your behalf and obtain a unique username ("Username") and password ("Password"). You are only allowed to access the Services with your Username and Password. You are not permitted to allow anyone other than you to access the Services using your Username and Password. You are fully responsible for all activities under your Account, as well as all activities undertaken using your Username or Password. You are required to maintain the information associated with your account current. Locusic shall not be liable for any errors or delays in payment attributable to inaccurate information contained on your account. You are not permitted to use your Username or Password to collect, or attempt to collect, any third party information including, but not limited to, personally identifiable information. At all times, you must act in compliance with all local, state, federal laws, statutes, rules and regulations applicable to your use of the Services.
6. License to Work. For the term beginning upon your submission of any Work to the Services, until termination of this Agreement pursuant to Section 8 below, for all Work(s) you submit to the Services, you hereby grant Locusic, during the term of this Agreement, a royalty-free right and license to store and distribute such Work through any and all of the following channels of distribution: 1) the Internet, including, but not limited to websites, browsers, toolbars, software applications, peer to peer networks, downloadable files, electronic mail and delivery; 2) public and private performance; 3) television, including, but not limited to, via broadcast, cable or satellite, digital or optical removable media, as well as wired and wireless distribution and distribution through video gaming consoles; 4) radio and/or other wireless transmission; 5) motion picture distribution; and 6) wired or wireless distribution to handheld electronic devices including, but not limited to, personal digital assistants, portable video players, tablets, portable phones, handheld gaming consoles, electronic mail, electronic messaging. You grant Locusic the right to sublicense Customers and the general public to listen to all such Work via the Services on or through any device and to copy and/or redistribute such Work for such Customers' private and public performance thereof. You also grant Locusic such additional rights in such Work that may be necessary to effectuate the purposes of this Agreement. Locusic may, but shall not be obligated to, restrict access to various Works by geographic location.
7. Services Usage. Locusic will use commercially reasonable measures to maintain operation of, and access to, the Services. Locusic shall not be liable for technical difficulties, third party actions, routine site maintenance or any other events outside Locusic's control, which may, periodically, result in temporary denial of access to, or use of, the Services. Locusic may, at any time, without notice or liability to you, modify or terminate any functionality associated with the Services. Neither Locusic nor this Agreement authorizes you to provide any Work to any third party by any means. Any transfer, distribution or license of any Work by you must be pursuant to authorization provided by an entity other than Locusic.
8. Termination. This Agreement shall continue until terminated by either you or Locusic. Locusic may, without warning, reject any Work you submit to the Services, remove such Work from the Services, and/or terminate, suspend or restrict your access to the Services for any reason, at any time. Locusic may terminate this Agreement without warning, if, in Locusic's sole discretion, you have violated any provision of this Agreement. Locusic may terminate this Agreement at any time, for any reason, upon reasonable notice to you. You may terminate this Agreement upon sixty (60) days written notice to Locusic and ceasing to access the Services. Such termination is your exclusive remedy in the event you are not satisfied with the Services.
9. Payments. Regardless of whether Locusic generates income from the Services, and regardless of whether any portion of such income is attributable to any Work you submit to the Services, you acknowledge that you will receive no compensation of any kind from Locusic, other than simply the non-monetary value of any exposure your Work may receive from being presented on the Services.
VIOLATIONS
10. Violations. Violations of this Agreement entitle Locusic to receive from you minimum damages in the amount of $500 for each violation, plus legal fees. This is in addition to damages awarded to other wronged parties.
Contacting another Customer of the Services for any purpose other than one specifically requested by such Customer, or contacting a Customer of the Services after receiving instructions not to contact such Customer, entitles the Customer and/or Locusic to receive from you minimum damages in the amount of $500 for each violation, plus legal fees.
Using Content in violation of this agreement entitles Locusic to receive from you minimum damages in the amount of $500 for each violation, plus legal fees.
11. Services Content. All Content is owned by Locusic and/or its licensors and is protected by intellectual property laws, including copyright. All copyrightable Content (other than this Agreement itself), including the selection and arrangement thereof, are ©2010-13 Locusic, LLC. ALL RIGHTS RESERVED. Except as stated herein, you may not copy, reproduce, distribute, republish, download, post or transmit the Content in any form or by any means, including, but not limited to, electronic, mechanical, photocopy, recording, or otherwise, without the prior written permission of Locusic. By posting any material, other than Work, to the Services, or by submitting any non-Work material directly to Locusic, you thereby grant Locusic an irrevocable, worldwide, royalty-free, and non-exclusive license thereto. Such license extends to all text, images, photos or graphics that you either post or submit. Such license includes the right to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display such material, and to incorporate such material into other works in any format or medium now known or later developed. You are wholly responsible for all Content you post to the Services or otherwise submit to Locusic. You agree to hold Locusic harmless from any claim or damage resulting in whole or in part from Content you post to the Services or submit to Locusic. You may not reproduce, sell, publish, distribute, modify, display, perform, re-post or otherwise use any portion of the Content in any manner other than in accordance with the intended use and in furtherance of the purpose of the Services.
You acknowledge that the Content is provided AS-IS, without any warranty, including any warranty of merchantability or fitness for an intended purpose. Locusic has the right, but is not obligated to, pre-screen, approve, or control the Content posted directly to the Services by users, including, but not limited to Work. Locusic does not guarantee the accuracy or veracity of any Content. Locusic does not (1) guarantee or ensure any product, service or transaction between a buyer and seller; (2) collect, process or escrow payment or goods; (3) transfer title on behalf of buyers or sellers; or (4) ship or deliver any goods.
Accordingly, it is your duty to independently verify the accuracy and veracity of any Content BEFORE contacting any Customer or advertiser, or entering into any agreement therewith. Locusic shall not be liable for any false, misleading, offensive, indecent, inaccurate or otherwise objectionable Content. You acknowledge Locusic is not liable to you or any third party for any errors, omissions, or loss or damage incurred as a result of using the Services. Your only recourse is to stop using the Services.
12. Hyperlinks. The Services includes links to other websites wholly independent of Locusic and the Services. Locusic makes no representation or warranty as to the accuracy, completeness or authenticity of any information contained on any such third party website. Locusic does not endorse, sponsor or guarantee such third party websites. You agree not to hold Locusic responsible for any advice, content, information, practices, products or services related to or made available through such third party websites.
13. Indemnification. You agree to defend, indemnify and hold Locusic, its subsidiaries, affiliates, assignees, managers and employees, its suppliers and their respective affiliates and agents, harmless from all claims, liabilities, damages and expenses (including attorneys' fees and expenses) arising out of or relating to your use of the Services, including, but not limited to: (1) your submission to the Services of any Content; (2) your alleged breach of this Agreement; or (3) your infringement of any intellectual property or other right of any person or entity.
14. Transmissions. You acknowledge that transmissions, other than personally–identifiable registration information, by you to or from the Services ("Transmissions") are non-confidential and that others may read and/or intercept such Transmissions. Locusic has the right, but not the obligation, in its sole discretion to review any Transmissions transmitted using the Services or Locusic's server(s), and to edit or delete any Transmissions which violate any term of this Agreement. You hereby consent to Locusic's collection and use of such Transmissions in accordance with Locusic's then current Privacy Policy and acknowledge that submitting Transmissions to the Services, creates no confidential or fiduciary relationship between you and Locusic. By using the Services, you thereby assign all right, title and interest, including the copyright therein, in all Transmissions to Locusic. Accordingly, Locusic shall own all intellectual property rights in the Transmissions, and shall be entitled to the unrestricted use of the Transmissions for any purpose, commercial or otherwise, without acknowledgment, compensation or liability to you. By submitting such Transmissions to the Services, you irrevocably waive all "moral rights" in such Transmissions.
15. Limitation of Liability. IN NO EVENT SHALL LOCUSIC, ITS PARENTS, ASSIGNEES, AFFILIATES, VENDORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM YOUR USE OR INABILITY TO USE THE SERVICES, OR FOR THE LOSS OF PROFITS, OR DAMAGES THAT MAY RESULT FROM THEFT, DELAYS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, FAILURE OF PERFORMANCE, DESTRUCTION OR UNAUTHORIZED ACCESS TO LOCUSIC'S RECORDS, OR FOR THE COST OF OBTAINING SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR WORK(S), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF LOCUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH CASES, THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU TO THE EXTENT THAT LOCUSIC'S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION SHALL NOT BE GREATER THAN ONE THOUSAND DOLLARS ($1,000).
16. Disclaimer. YOU ACKNOWLEDGE THAT THE SERVICES AND THE CONTENT THEREIN ARE PROVIDED ON AN "AS IS, WHERE IS" BASIS AND THAT LOCUSIC MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, REGARDING THE SERVICES OR THE CONTENT. LOCUSIC DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABLILTY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BY USING OR ATTEMPTING TO USE THE SERVICES YOU EXPRESSLY ACKNOWLEDGE: (1) THE CONTENT COULD INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS; (2) LOCUSIC DOES NOT REPRESENT OR WARRANT THE TIMLINESS, RELIABILITY, COMPLETENESS OR ACCURACY OF THE INFORMATION; AND (3) LOCUSIC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVER(S) ARE FREE OF ERRORS OR VIRUSES OR OTHER POTENTIALLY DAMAGING CONTENT. LOCUSIC MAY PERIODICALLY CHANGE THE CONTENT. LOCUSIC RESERVES THE RIGHT TO IMPLEMENT SUCH CHANGES, AT ANY TIME WITHOUT NOTICE TO YOU. UNLESS SPECIFICALLY INDICATED IN WRITING TO THE CONTRARY, NO REFERENCE IN THE SERVICES TO ANY PRODUCTS, SERVICES, PROCESSES, OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, OR OTHERWISE SHALL CONSTITUTE OR IMPLY LOCUSIC'S ENDORSEMENT OR SPONSORSHIP THEREOF.
17. Copyright Infringement Notice. It is Locusic's policy to investigate and respond to claims of intellectual property infringement. Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"), Locusic has designated the following agent to the U.S. Copyright Office to receive notifications of claimed copyright infringement relating to the Services:
- by mail:
Locusic DMCA Copyright Agent
c/o Law Offices Of Brett J. Trout
516 Walnut
Des Moines, Iowa 50309 - by fax: (515) 280-7114
- by email: trout@bretttrout.com
If you believe any of the Services Content infringes your copyright, forward the following information to the above-identified DMCA Agent:
1. A physical or electronic signature of the copyright holder or an authorized agent acting on behalf of the copyright holder;
2. A description of the copyrighted work you claim is infringed or, if multiple works are involved, a representative list of the works you believe are infringed;
3. A description of the material that is allegedly infringing or the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
4. Your contact information, including your address, telephone number, and email address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
18. Trademark. All trademarks used on the Services are the property of their respective owners and may not be used without permission therefrom. Whether or not specifically designated as such, the Locusic name and logo and all other colors, graphics, logos, sounds, images, icons and buttons displayed in the Services ("Marks") are trademarks of Locusic and/or their respective owners. Absent prior written consent from an officer of Locusic, you may not copy imitate or use any portion of the Marks.
19. Data Collection and Use. Your Transmissions are subject to Locusic's Privacy Policy. By using the Services, you agree to review the Privacy Policy, and be bound by its terms and conditions. From time to time, Locusic may change its Privacy Policy without notice to you. Your continued use of the Services after the posting of any changes shall constitute your agreement with and acceptance of such changes. Locusic does not knowingly collect data directly from anyone under 13 years of age. If you believe Locusic has inadvertently collected any such data, please contact our website administrator at webmaster@locusic.com for information regarding removal of any such data from our files.
20. Governing Law. This is the entire agreement between you and Locusic relating to your use of the Services. This Agreement shall be governed in accordance with the laws of the State of Iowa. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Iowa, including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
21. Assignment. You may not assign your rights or obligations under this Agreement, either in whole or in part without the prior written consent of Locusic. Locusic may assign its rights and/or obligations under this Agreement at any time without notice to you. This Agreement binds, and inures to the benefit of, all assigns authorized under this Agreement.
22. Export. You shall abide by all applicable local and international laws, including but not limited to the export and import regulations of other countries. Other than for Work(s) for which you own or control all of the necessary intellectual property rights therein, you shall not acquire for, ship, transfer or export any Work(s), or any portion thereof, directly or indirectly, in violation of any national or international treaty, law or regulation.
23. No Agency. You and Locusic are independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employment or other form of joint enterprise between you and Locusic. You have no authority to, and shall not, bind or incur obligations on Locusic's behalf. You shall not represent yourself as an agent or representative of Locusic.
24. Force Majeure. Locusic shall not be responsible for any failure in the performance of obligations covered by this Agreement resulting from acts beyond its control. Such acts shall include but not be limited to acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, war, terrorism, computer hacking, labor disputes, civil disturbances, power failures, communications transmission failures, natural disasters, governmental regulations, fire, flood, epidemic, restrictions, strikes and/or freight embargoes.
25. Acknowledgement. You acknowledge that international copyright treaties and laws, as well as other intellectual property laws and treaties, protect the Services, and that Locusic retains all rights in the Services, without limitation.
26. Remedies. In addition to all other rights and remedies available to Locusic, Locusic shall have the right to obtain specific performance of your obligations hereunder.
27. Severability. If any provision of this Agreement is held invalid, void, or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.
28. General. You acknowledge this Agreement, Locusic's Privacy Policy and other legal notices published by Locusic to the Website constitute the entire agreement between you and Locusic regarding the Services. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by Locusic. A waiver by Locusic of any of the conditions to be performed by you hereunder shall not be construed to be a waiver of any succeeding breach thereof. All remedies provided for in this Agreement shall be cumulative, and in addition to, and not in lieu of, any other remedies available to Locusic at law, in equity or otherwise. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arises or will be forever barred.