THIS IS A LEGAL AGREEMENT BETWEEN YOU AND EASY TEMPO, Inc. ("ET") STATING THE TERMS THAT GOVERN YOUR USE OF THE SOUND-MACHINE.COM SITE AND THE SERVICE DEFINED HEREIN. THIS AGREEMENT - TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, AND ALL OF ET RULES AND POLICIES - COLLECTIVELY CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND ET. USE OF THE SITE AND/OR THE SERVICE CONSTITUTES YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND ET MAY REFUSE TO ALLOW YOU TO USE THIS SITE AND/OR THE SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.
1. Definition of the Service. The “Service” means an ET service through which businesses or entities may access SOUNDMACHINE® internet radio via streaming or using a Music Fabricator media player (the “Media Player”) via proprietary software (the “Software”) under the terms and conditions set forth in this Agreement. “SOUNDMACHINE” shall mean Easy Tempo, Inc. (ET) and its subsidiaries.
2. System and Equipment Requirements. Use of the Service requires the following items, which may change from time to time and which are your responsibility:
a. An active SOUNDMACHINE account.
b. A computer with web browsing capabilities by which to stream content and, if applicable, activate your Media Player and manage your SOUNDMACHINE account.
c. A Media Player.
d. Wired Broadband Internet SOUNDMACHINE access. Internet access is not included as part of the Service, and third party fees may apply. Because use of the Service involves software and Internet access, your ability to use the Service may be affected by the performance of your broadband service. SOUNDMACHINE is not responsible for Service interruptions caused by disruptions of your Internet service.
e. A sound system, including one or more amplifiers with an RCA input.
3. Warranty. SOUNDMACHINE warrants the Media Player to be free from original defects in material for a period of one (1) year after the shipping date (the “Warranty Period”). You agree to contact the SOUNDMACHINE Support center to troubleshoot the Media Player. SOUNDMACHINE shall, in its sole discretion, replace defective Media Players, which shall be SOUNDMACHINE sole liability and your exclusive remedy hereunder. The warranty does not cover: the Service, SOUNDMACHINE internet radio, any equipment other than the Media Player; damage to the Media Player caused by the negligent or willful acts of you, your employees, agents or business invitees; theft; vandalism; water (or other liquids); fire; lightning; wind; snow; acts of God; or power surges. Failure to protect the Media Player from power surges will void any warranty hereunder.
4. Copyright Licensing.
a. Authorized Use. You agree not to transmit or use the Service outside of the locations identified on Your Account (as defined herein). SOUNDMACHINE shall pay applicable license fees (as applicable) for your use of the Service as authorized herein only in the United States of America and Canada. You acknowledge that you must separately and additionally obtain and pay for the right to utilize the Music Service in Customer Locations outside of the United States and Canada from the applicable music industry performing and/or reproduction rights societies, in each country outside of the United States and Canada in which you Locations are located. You shall indemnify and hold harmless SOUNDMACHINE in accordance with the terms hereof for any failure to obtain and pay for such rights from such music industry performing and/or reproduction rights societies.
b. Exclusions. You shall not use the Service in any ballrooms, discotheques, dance studios or bowling centers; any theme park, skating rink or nightclub or other location where an admission fee or cover charge is assessed; or in instructed health club classes.
5. Territory. The Service may be used only in the licensed territories (the “Territory”). You agree not to use or attempt to use the Service from outside of the Territory. You will be informed when you signup if Service is available in your Territory.
6. Minimum Age. The Service is not intended for users less than thirteen (13) years old. You represent that you are at least thirteen (13) years old.
7. User Account and Security.
a. Account and Password. As a registered user of the Service, you must establish a SOUNDMACHINE account ("Your Account"). You are solely responsible for maintaining the confidentiality and security of Your Account. You should not reveal Your Account information to anyone else or use anyone else's account. You are responsible for all activities that occur on or through Your Account, and you agree to immediately notify SOUNDMACHINE of any unauthorized use of Your Account or any other breach of security. SOUNDMACHINE shall not be responsible for any losses arising out of the use of Your Account. You shall not access or attempt to access an account that you are not authorized to access.
b. Your Account Information. You agree to provide accurate, current, and complete information for Your Account. You further agree to maintain and update Your Account information as required to keep it accurate, current, and complete. SOUNDMACHINE may terminate your rights to the Service if any information you provide is false, inaccurate or incomplete. You agree that SOUNDMACHINE may store and use Your Account information (including credit or debit card account information) for use in maintaining your accounts and billing fees to your credit card account. SOUNDMACHINE may contact you regarding Your Account, the Service or other offers from SOUNDMACHINE. You may opt out of email contact from SOUNDMACHINE by following the instructions included with the communications.
c. Security. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any technologies associated with the Service, the Media Player, the Software or any Content contained in the Service. You agree not to modify the Software or the Media Player in any manner or form, or to use modified versions of the Software or the Media Player, for any purposes including obtaining unauthorized access to the Service. SOUNDMACHINE may monitor your compliance with this Agreement, and SOUNDMACHINE reserves the right to enforce the Agreement with or without notice to you. Violations of this Agreement and system or network security may result in civil or criminal liability.
8. Explicit Content. You agree that only you can select the appropriate music for your clientele, and therefore cannot hold responsible SOUNDMACHINE for any claim or liability arising from playing any track with offensive or suggestive content, nor will you claim SOUNDMACHINE any credit or refund for the play of any track with offensive or suggestive content.
9. Term. At the time you register for the Service, your credit card will be charged for the Media Player and the first thirty-three (33) days of Service plus applicable sales tax and freight. Thirty-three (33) days from the first billing, your credit card will be charged for the second month’s Service (the “Monthly Renewal Date”). Your Service shall extend and renew on a monthly basis under the same terms and conditions and your credit card will be charged on the Monthly Renewal Date for each month thereafter until you terminate this Agreement. Should you terminate the Agreement on a date other than the Monthly Renewal Date, your Service will continue until the next Monthly Renewal Date, and no rebate or refund (partial or otherwise) will be available.
11. Agreement to Pay.
a. Payment for Service. You agree to pay for the Service and any Media Player(s) that you purchase, and that SOUNDMACHINE may charge your credit card for any Service or Media Player purchased and for any additional amounts (including any freight charges, and sales taxes, if applicable) as may be accrued by or in connection with Your Account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING SOUNDMACHINE WITH A VALID CREDIT CARD FOR PAYMENT OF ALL FEES. All fees will be billed to the credit card you designate during the registration process or at any time thereafter. If you want to designate a different credit card or if there is a change in your credit card account status, you must change your credit card information online on the User Account page. In the event that your credit card expires, you will receive an email notification requesting updated credit card information. (There may be a temporary disruption of your access to the Service until SOUNDMACHINE can verify the validity of the new credit card information.)
b. Right to Change Prices and Availability of Service. Prices and availability of the Service are subject to change at any time upon thirty (30) days prior notice.
c. Electronic Signatures and Contracts. Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS AND THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE AND THROUGH THE SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
d. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
12. Intellectual Property.
a. Acknowledgement and Ownership. You agree that the Service, including but not limited to Content, metadata and graphics, contains proprietary information and material that is owned by SOUNDMACHINE, their partners and/or licensors, and that is protected by applicable intellectual property and other laws, including but not limited to copyright laws, and that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the terms of this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted hereunder. You agree not to modify, rent, lease, loan, sell, or distribute the Service, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
b. Copyrights. All copyrights in and to the Service, the Content, the Software and the Media Player, are owned by SOUNDMACHINE, its partners and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE, THE MEDIA PLAYER OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF SOUNDMACHINE AND/OR OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
c. Trademarks. SOUNDMACHINE and other ET trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of SOUNDMACHINE in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
a. Termination by SOUNDMACHINE. If you fail, or SOUNDMACHINE suspects that you have failed, to comply with any of the provisions of this Agreement, including but not limited to failure to make any payment due, failure to provide SOUNDMACHINE with a valid credit card or with accurate and complete information, failure to safeguard Your Account information, violation of any license to the Software, or infringement or other violation of third parties' rights, SOUNDMACHINE, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or Your Account, and you will remain liable for all amounts due under Your Account up to and including the Monthly Renewal Date following the date of termination; and/or (ii) terminate the right to use the Software; and/or (iii) de-authorize the Media Player or otherwise preclude access to the Service (or any part thereof).
b. Termination of the Service. SOUNDMACHINE reserves the right to modify, suspend, or discontinue the Service at any time upon thirty (30) days’ notice to you, and SOUNDMACHINE will not be liable to you or to any third party should it exercise such rights. You may terminate your access to the Service at any time by visiting the “Account” page on SOUNDMACHINE.com/SOUNDMACHINE or writing to SOUNDMACHINE’ Customer Service center at email@example.com. Upon termination, the Service will end as described in Section 8.
14. General Compliance with Laws. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Service.
15. Compliance with this Agreement. You agree that SOUNDMACHINE has the right to cooperate with any legal process relating to your use of the Service and/or Content, and/or a third party claim that your use of the Service and/or Content is unlawful and/or infringes such third party's rights. You further agree that SOUNDMACHINE has the right, without liability to you, to disclose any information to law enforcement authorities, government officials, and/or a third party, as SOUNDMACHINE believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement.
16. Disclaimer of Warranties; Liability Limitations.
a. NONE OF SOUNDMACHINE, ITS PARTNERS OR LICENSORS GUARANTEES, REPRESENTS, OR WARRANTS THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT SOUNDMACHINE MAY CANCEL THE SERVICE AT ANY TIME, UPON THIRTY (30) DAYS NOTICE.
b. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL CONTENT DELIVERED TO YOU THROUGH THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
c. IN NO CASE SHALL SOUNDMACHINE, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PARTNERS OR LICENSORS (THE “COVERED ENTTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE SERVICE OR THE MEDIA PLAYER OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR THE MEDIA PLAYER, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COVERED ENTITIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
d. SOUNDMACHINE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND THE COVERED ENTITIES HEREBY DISCLAIM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
e. NONE OF THE COVERED ENTITIES REPRESENTS OR GUARANTEES THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND SUCH ENTITIES DISCLAIM ANY LIABILITY RELATING THERETO.
17. Waiver and Indemnity. BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD THE COVERED ENTITIES HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY SOUNDMACHINE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM ANY COVERED ENTITY AS A RESULT OF ITS DECISION TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF SOUNDMACHINE' CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
18. This Agreement may not be assigned by you without the written consent of SOUNDMACHINE; however, this Agreement is fully assignable by SOUNDMACHINE. Subject to the foregoing regarding assignment, this Agreement shall inure to the benefit of and be binding upon your successors and assigns.
19. Changes. SOUNDMACHINE reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately upon notification of such Additional Terms as permitted in Section 19. Your continued use of the Service following these updates will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference, and all references to this Agreement include the Additional Terms.
20. Notices. SOUNDMACHINE may send you notice with respect to the Service by sending an email message to the email address listed in Your Account information, by sending a letter via postal mail to the mailing address listed in Your Account information, or by posting updated Terms of Service at SOUNDMACHINE.com/SOUNDMACHINE [. Notices shall become effective immediately.]
21. Governing Law. The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with SOUNDMACHINE or relating in any way to your use of the Service resides in the courts of the city of Los Angeles in the State of California.
22. Miscellaneous. This Agreement together constitutes the entire agreement between you and SOUNDMACHINE relating to your use of the Service. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. SOUNDMACHINE' failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the other provisions will remain in full force and effect. SOUNDMACHINE will not be responsible for failures to fulfill any obligations due to causes beyond its control.