Description of Service, Acceptance of Terms, Modification
Last Updated: Aug 25th, 2009
Escape Media Group, Inc. (”EMG”) provides users (”Users”) of this application with a platform to interact with and utilize the features, functionality, and data of the web pages located at grooveshark.com, twisten.fm, and tinysong.com, and their associated subdomains including but not limited to widgets.grooveshark.com, and listen.grooveshark.com (the "Site"), for the discovery and promotion of music, the sharing of information about music, the posting, syndication of, linking to or uploading of User Content (defined below), and other features, functions, or services. This appliction and any of its intreactions with any feature, functionality, or data of the Site shall be collectively know as the service ("Service"). The Service will include the cataloging, indexing, sharing and streaming of User Content.
This Agreement sets out the legally binding terms between you and EMG. This Agreement applies to all Users of the Service, including users who listen to or share audio content and or its associated metadata, information, and other materials. This Agreement applies to all Users regardless of if they are using the Service anonymously or as a registered user. If you choose to use the Service, you will be agreeing to abide by all of the terms and conditions of this Terms and Conditions of Use Agreement (the “Agreement”). EMG may change, add or remove portions of this Agreement at any time, but if it does so, it will post such changes on the Service, or send them to you via e-mail.
IF ANY OF THESE RULES ARE UNACCEPTABLE TO YOU, DO NOT USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THESE OPERATING RULES, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.
EMG may change, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database, or content. EMG may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
In addition, when using particular EMG services, you and EMG shall be subject to any additional terms, guidelines or rules applicable to such services, which may be posted from time to time. All such additional terms, guidelines and rules are hereby incorporated by reference into this Agreement. Also, EMG may offer other services from time to time that are governed by different terms of service.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new EMG properties, shall be subject to this Agreement.
EMG is the owner of all intellectual property rights, including all copyrights, patents, trademarks associated with the Service, including all associated software, logos, text, and graphics, but excluding User Content (defined below). You agree not to display or use any EMG intellectual property without EMG’s prior permission.
License and Site Access
EMG grants you a limited license to access and make personal use of the Service. You agree not to download (other than page caching) or modify the Site, or any portion of it, except with express written consent of EMG. Any musical work made available via the Service is intended for Streaming only. Streaming meaning the transmission of an audiovisual work via the Internet from the Service to a user’s device in such a manner that the data is intended for real-time listening and not intended to be copied, stored, permanently downloaded, or redistributed by the user. Accessing any musical work for any purpose or in any manner other than Streaming is expressly prohibited. This license does not include any resale or commercial use of the Site, the Service, or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots , or similar data gathering and extraction tools. The Service is for the personal use of Users only and may not be used in connection with any commercial endeavors except those may be specifically endorsed or approved by the management of EMG from time to time. Illegal and/or unauthorized use of the Service, including collecting usernames, email addresses or User Content of other Users by electronic or other means for the purpose of sending unsolicited email, unauthorized framing of or linking to the Site or other illegal purposes will be investigated. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from posts or accounts without notice and may result in termination of membership privileges. EMG will take appropriate legal action for any illegal or unauthorized use of the Service. The Site, Service, or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of EMG. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, content, music, text, page layout, or form) of EMG and our affiliates or other Users. You may not use any meta tags or any other “hidden text” utilizing EMG’s name or trademarks without the express written consent of EMG. Any unauthorized use terminates the permission or license granted by EMG. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the Service so long as the link does not portray EMG, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any EMG logo or other proprietary graphic or trademark as part of the link without express written permission.
Account, Password, Security
You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (i) immediately notify EMG of any unauthorized use of your password or account or any other breach of security , and (ii) ensure that you exit from your account at the end of each session. EMG cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You agree to not use the Service or export any portion of the Service, including the User Content (defined below) in violation of U.S. export regulations. You are responsible for adhering to all relevant local and national laws wherever you are.
Uploaded Content, Reviews, Comments, Etc.
Please choose carefully the words, information, content, messages, text, files, images, photos, videos, music, sounds, profiles, works of authorship or any other materials you post, upload, link to, publish, display or make available on the Site or through the Service and any such content that you provide or make available to other Users (collectively, “User Content”). You are responsible for all User Content, as set forth below.
Unless specifically asked by EMG in the registration process, do not post the following items to the Service: telephone numbers, street addresses or last names. You may not provide a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Content.
Any photographs posted by you may not contain nudity or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter.Information or User Content provided by other Users may contain inaccurate, inappropriate or offensive material, products or services, and EMG assumes no responsibility or liability for this material.
EMG reserves the right, in its sole discretion, to reject, refuse to post, link to, or remove any User Content, or to restrict, suspend, or terminate your access to all or any part of the Site and/or the Service at any time, for any or no reason, with or without prior notice, and without liability. EMG has the right but not the obligation to remove or edit User Content, but does not regularly review User Content. EMG takes no responsibility and assumes no liability for any User Content.
Unless we indicate otherwise, you grant EMG and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, display, perform, reproduce, publish, and distribute such User Content throughout the world via the Service. You grant EMG and it affiliates the right to use the name that you submit in connection with such User Content. You are solely responsible for any necessary payments that may become due to any third parties as the result of your posting of or linking to the User Content and EMG’s use thereof.
User Content shall not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable. The following is a partial list of the kind of User Content that is illegal or prohibited on the Service. Prohibited User Content includes but is not limited to content that: (i) is obscene, patently offensive, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) harasses or advocates harassment of another person; (iii) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”; (iv) consists of information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) consists of an illegal or unauthorized copy of a copyrighted work, such as sound recordings, musical compositions and videos in which you do not personally own the copyright (including CDs and tracks you may have purchased), or otherwise do not have the necessary authority from the copyright owner(s); (vi) computer programs or links to them or providing information to circumvent manufacturer-installed copy-protect devices; (vii) contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page); (viii) provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; (ix) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (x) solicits passwords or personal identifying information for commercial or unlawful purposes from other users; (xi) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (xii) uses sexually suggestive imagery or any other unfair, misleading or deceptive content intended to draw traffic to the profile. EMG reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending User Content from the Service and terminating the membership of such violators.
Should EMG discover or be informed that you have posted User Content for which you do not personally own the copyright or otherwise do not have the necessary authority from the copyright owner, EMG may take all appropriate steps to rectify your noncompliance, including without limitation, disabling your ability to upload User Content to the Service, unless you provide EMG with a counter notification of your right to upload such User Content in compliance with our Copyright Policy [link to DMCA Page]. Should EMG discover or be informed that you continue to upload User Content for which you do not personally own the copyright or otherwise do not have the necessary authority from the copyright owner after EMG has made reasonable efforts to disable your ability to do so, you will be considered a repeat infringer, and EMG will terminate your account and delete all data associated with your account; remove all of the User Content you have uploaded/submitted to the Site; and use its reasonable efforts to prohibit you from signing up for another User account in the future.
EMG shall take reasonable steps to promptly notify you via the email address submitted by you upon registration with the Site for the Services should your ability to upload User Content to the Service be disabled and/or your account for the Service be terminated. If you believe that you do have the appropriate rights to post User Content, you can contact use in accordance with our Copyright Policy [link to DMCA page].
You agree to abide by the terms of this Agreement, and to not use the Service to: (i) interfere with, manipulate, or take any actions that may undermine the integrity of any rating system used on the Service; (ii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (iii) collect or store personal data about other Users; or (iv) harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any other User without their prior explicit consent. (v) reverse engineer or decompile any elements of the Service except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Service with another software program, and you have first requested EMG to provide the information necessary to achieve such operability and EMG has not made such information available.
Without limiting other remedies, EMG and its affiliates may immediately warn Users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide the Service to you if: (i) you breach this Agreement or the documents it incorporates by reference; (ii) we are unable to verify or authenticate any information you provide to us; or (iii) we believe that your actions may cause financial loss or legal liability for you, us or our Users. Your membership will be terminated and you will be denied access to the Service if you breach this Agreement or any other agreement between you and EMG in any way on more than one occasion.
You are solely responsible for your interactions with other Users of the Service. EMG reserves the right, but has no obligation, to monitor disputes between you and other Users.
Use & Storage
You acknowledge that EMG may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that User Content will be retained by or made available through the Service, the maximum disk space that will be allotted on EMG’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that EMG has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the Service. You acknowledge that EMG reserves the right to cancel accounts that are inactive for an extended period of time. You further acknowledge that EMG reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Third-Party Content, Links and Syndication
You may terminate this Agreement at any time by permanently discontinuing your use of the Service and Service. EMG may terminate this Agreement at any time for any reason upon notice to you by email. Sections 3, 12, 13, 14, 15, 16, 17 and 18 shall continue in full force and effect upon any termination of this Agreement.
Representations & Warranties
You represent and warrant that you have the full authority to act on your behalf and on behalf of any and all owners of any right, title and interest in and to any User Content you post, submit, transfer, make available, or link to.
You represent and warrant that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement and have obtained all necessary third-party consents, licenses and permissions necessary to enter into and fully perform your obligations herein. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. Your membership or access to the Service may be deleted or blocked without warning if it is found that you are misrepresenting your age. Your membership is solely for your personal use, and you shall not authorize others to use your account.
You represent and warrant that you are solely responsible for all User Content posted, uploaded, published, made available or displayed through your User account, including any messages, and for your interactions with other Users. You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize EMG to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Service and these Terms of Service. For clarity, you retain all of your ownership rights in your User Content.
You represent and warrant that you shall not act in any manner that conflicts or interferes with any existing commitment or obligation of yours, and that no agreement previously entered into by you will interfere with your performance of your obligations under this Agreement.
You represent and warrant that you shall perform in compliance with any applicable laws, rules and regulations of any governmental authority.
You represent and warrant that you will not use the Service to upload, post, link to, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or any telecommunications equipment.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EMG EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EMG MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMG OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Indemnification, Limited Liability
You hereby indemnify and hold harmless, and upon EMG’s request, defend, EMG its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim, action, or proceeding brought by a third party based on: (i) a breach of any warranty, representation, covenant or obligation of yours under this Agreement; or (ii) any allegation that any User Content provided, uploaded, syndicated, linked to or authorized by or on behalf of you hereunder or EMG’s or any User’s use thereof violates or infringes the rights of another party. You will reimburse EMG and its affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section 14, provided that EMG obtains your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. EMG shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon EMG’s request. EMG shall have the right, at its expense, to participate in the defense thereof under your direction.
EXCEPT PURSUANT TO YOUR INDEMNITY OBLIGATION IN SECTION 14(a), AND EXCEPT FOR A BREACH OF YOUR REPRESENTATIONS AND WARRANTIES IN SECTION 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EMG’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO AMOUNT PAID, IF ANY, BY YOU TO EMG FOR THE SERVICE DURING THE TERM OF MEMBERSHIP.
This Agreement and the relationship between you and EMG shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and EMG agree to submit to the personal and exclusive jurisdiction of the courts located within the State and County of New York.
Except as explicitly stated otherwise, any notices to EMG shall be sent by certified mail, return receipt requested, to Escape Media Group, Inc., 1031 NW 6th St. Suite F-2, Gainesville, FL 32601, Attn: Legal Department. Notice shall be deemed given three (3) days after the date of mailing.
EMG respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied or used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide EMG’s copyright agent with the following information (”Notice”): (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (2) a description of the copyrighted work or other intellectual property that you claim has been infringed; (3) a hyperlink to the material that you claim is infringing on the Service. Please note, providing a song, artist, or album name is not sufficient, you must provide a unique hyperlink to each item of material that you claim is infringing on the Service ; (4) your address, telephone number, and email address; (5) 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 (6) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. Any Notice of claims of copyright or other intellectual property infringement must be sent to EMG at: Colin Hostert
EMG Legal Department
201 SE 2nd Ave, Suite 209
Gainesville, FL 32601
Please note that this procedure is exclusively for notifying EMG and its affiliates that your copyrighted material has been infringed.
The failure of EMG to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.