Indie Advance Inc. Terms and Conditions for Websites and Services Use
These Indie Advance Inc. Terms and Conditions for Websites and Services Use (the “Terms and Conditions”), in addition to the Indie Advance End User License Agreement which is incorporated herein by reference, govern your use of the Indie Advance distribution and services offered at and through: indieadvance.com, distribution.indieadvance.com, and artist services from indieadvance.com (all of which collectively are referenced hereafter as the “Sites”). The Sites are made available by Indie Advance and their partners and their affiliates (collectively, Indie Advance and any subsidiary, partner or affiliate shall be referenced hereafter as “Indie Advance”, “we” or “us”). We may change the Terms and Conditions and/or The Indie Advance End User License Agreement from time to time, at any time without notice to you, by posting such changes on the Sites. Any capitalized terms used but not described herein shall have the meaning set forth in the Indie Advance End User License Agreement.
By using the Sites and Services, you accept and agree to these Terms and Conditions as applied to your use. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Sites.
1. Proprietary Rights.
As between you and Indie Advance, Indie Advance owns, solely and exclusively, all rights, title and interest in and to the Sites, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, lyrics, software, etc.), code, data and materials thereon, the look and feel, design and organization of the Sites, and the compilation of the content, code, data and materials on the Sites, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Sites does not grant to you ownership of any content, code, data or materials you may access on the Sites. You may view the content on the Sites on your computer or other internet-compatible device, and make single copies or prints of the content on the Sites for your personal, internal use only. Any commercial distribution, publishing or exploitation of the Sites, or any content, code, data or materials on the Sites, is strictly prohibited unless you have received the express prior permission of Indie Advance or the applicable rights holder. (The Sites may contain some features that enable you to obtain rights to use certain of the content on the Sites, such as lyrics, music, photographs, and the like. In such situations, your rights to use such content are limited to the rights expressly granted by Indie Advance.) You may not otherwise copy, reproduce, distribute or otherwise exploit any content, code, data or materials on the Sites without prior consent from Indie Advance. If you make other use of the Sites, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Indie Advance will aggressively enforce its intellectual property rights to the fullest extent of the law.
2. Trademarks.
The trademarks, logos, service marks and trade names (collectively the “Trademarks”) displayed on the Sites are registered and unregistered Trademarks of Indie Advance and others and may not be used in connection with products or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. All Trademarks not owned by Indie Advance that appear on the Sites, if any, are the property of their respective owners. Nothing contained on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Sites without the written permission of Indie Advance or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Sites is strictly prohibited. Indie Advance will aggressively enforce its Trademark rights to the fullest extent of the law.
3. User Information.
In the course of your use of the Sites, you may be asked to provide certain personalized information to us (such information referred to hereinafter as “User Information”). Our information collection and use policies with respect to the privacy of such User Information are set forth in the Sites’ Privacy Policy which is incorporated herein by reference for all purposes and the Indie Advance End User License Agreement. You acknowledge and agree that you are solely responsible for the accuracy and content of User Information.
4. Unsolicited Materials.
Unless specifically requested, we do not solicit nor do we wish to receive any
confidential, secret or proprietary information or other material from you through the Sites or by any other medium. Any information, creative works, demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques or other materials submitted or sent to us (“Submitted Materials”) will be deemed not to be confidential or secret, and may be used by us in any manner consistent with the Sites’ Privacy Policy.
By submitting or sending Submitted Materials to us, you:
i. represent, warrant and covenant that the Submitted Materials are original to you, no other party has any rights thereto, and any “moral rights” in Submitted Materials have been waived; and
ii. you grant us a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed.
We cannot be responsible for maintaining any Submitted Material that you provide to us, and we may delete or destroy any such Submitted Material at any time.
5. User Conduct.
You represent, warrant and covenant that, while using the Sites, you shall not upload, post or transmit to the Sites, or distribute or otherwise publish through the Sites, any materials that:
1. are protected by third party copyright, or other proprietary or intellectual property right;
2. are unlawful, threatening, hateful, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals);
3. restrict or inhibit any other user from using and enjoying the Sites;
4. constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability; or
5. contain a virus or other harmful component, advertising of any kind, or false or misleading indications of origin or statements of fact.
You also warrant and agree that you shall not:
1. impersonate any person or entity or misrepresent your affiliation with any other person or entity;
2. upload, post, publish, transmit, reproduce, distribute or in any way exploit any information or other material obtained through the Sites for commercial purposes (other than as expressly permitted by the provider of such information or other material);
3. engage in spamming, flooding, harvesting of e-mail addresses or other personal information, spidering, “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information, or send chain letters or pyramid schemes via the Sites; or
4. attempt to gain unauthorized access to other computer systems through the Sites. You agree that you will not use the Sites in any manner that could damage, disable, overburden, or impair the Sites or interfere with any other party’s use and enjoyment of the Sites.
You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Sites.
Although Indie Advance may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on the Sites, Indie Advance is under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations on the Sites nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained
in any information within such locations on the Sites.
You agree that if you include a link from any other website to the Sites, such link shall open in a new browser window. You agree not to link from any other website to the Sites in any manner such that the Sites, or any page of the Sites, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve the right to revoke your right to link to the Sites from your website at any time upon written notice to you.
You represent, warrant and covenant that you shall defend, indemnify and hold Indie Advance, Inc. and its directors, officers, employees and agents harmless from and against any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Sites, the Services, your placement or transmission of any message, content, information, software or other materials through the Sites, or your breach or violation of the law or of these Terms and Conditions. Indie Advance, Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Indie Advance, Inc.’s defense of such
claim.
6. Account and Password.
If you choose to become a user of the Sites, you shall be enabled to create an account in the Sites with a username and password. If so, you are responsible for maintaining the strict confidentiality of your account password, and you shall be responsible for any access to or use of the Sites by you or any person or entity using a password provided to you, whether or not such access or use has been authorized by or on behalf of you, and whether or not such person or entity is your employee or agent. You agree to
(a) immediately notify Indie Advance of any unauthorized use of your password or account or any other breach of security, and
(b) ensure that you exit from your account at the end of each session. It is your sole responsibility to control the dissemination and use of your password, control access to and use of your account, and notify Indie Advance when you desire to cancel your account on the Sites. Indie Advance will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.
7. Software Downloads.
In the event that you receive software demos or other software products downloaded from the Sites or otherwise delivered or provided by Indie Advance in response to your request, your use of such software will be subject to the software license agreement that accompanies such software.
8. Orders for Products and Services.
We may make certain products available to visitors and registrants of the Sites. For example, you may be able to order certain music-related products and/or licenses through the Sites. You may only do so if, and you hereby represent and warrant that, you are 18 years old or older. You agree to pay in full the prices for any purchases you make either by credit/debit card concurrent with your online order or by other payment means acceptable to Indie Advance. You agree to pay all applicable taxes. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us.
9. Third Party Websites.
You may be able to link from the Sites to third party websites (“Linked Sites”). For example, you may purchase services, some of which may be Indie Advance services, on or through Linked Sites. You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites. Links to Linked Sites do not constitute an endorsement by us of such websites or the information, content, products, services, advertising, code or other materials presented on or through such websites.
10. Disclaimer of Warranties.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE SITES, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT THAT THE SITES OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITES WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. INDIE ADVANCE ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITES OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITES.
IF YOU ARE DISSATISFIED WITH THE SITES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITES. WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, INDIE ADVANCE AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITES, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SITES OR IN CORRESPONDENCE WITH INDIE ADVANCE OR ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SITES ARE PROVIDED BY INDIE ADVANCE “AS IS”, EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND INDIE ADVANCE OR ITS LICENSOR OR SUPPLIER.
11. Limitation of liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL INDIE ADVANCE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, PARTNERS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITES, THE SERVICES OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR USE OF AND RELIANCE ON THE SITES AND THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THE SITES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO INDIE ADVANCE FOR YOUR USE OF THE SITES, IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
12. Applicable Laws and Cooperation.
We control and operate the Sites from our offices in the United States of America. This Agreement shall be solely governed by the laws of the United States of America and the laws of the State of Colorado, as applied to agreements performed wholly within the State of Colorado. We do not represent that materials on the Sites are appropriate or available for use in other locations. Persons who choose to access the Sites from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to reasonably and promptly cooperate with us in the investigation of any claim or demand issued by a relevant government authority or bona fide third party to the extent it pertains to your account(s).
13. Modifications to the Sites and the Services.
We reserve the right, for any reason, in our sole discretion, to terminate, change, suspend or discontinue any aspect of the Sites and the Services, including, but not limited to, content, features or hours of availability. We may also impose limits on certain features of the Sites or restrict your access to part or all of the Sites without notice or penalty. Indie Advance reserves the right to temporarily or permanently terminate your membership on the Sites for any or no reason without prior notice.
14. Dispute Resolution.
You consent to the exclusive jurisdiction of the state and federal courts located in the County of Boulder, Colorado, USA, to resolve any dispute or question related to or arising under these Terms and Conditions. These Terms and Conditions, the Indie Advance End User License Agreement, and any other agreements between us and you related to these Terms and Conditions will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either we or you incur fees, costs or expenses to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable fees, expenses and costs incurred, including reasonable attorneys’ fees, from the non-prevailing party or parties.
EACH PARTY HERETO AGREES TO BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15. Miscellaneous.
Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions 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 the Terms and Conditions remain in full force and effect.
Last updated and effective: July 19, 2021.