MARMOSET LLC SITE USE AGREEMENT
This Site Use Agreement constitutes legally binding terms and conditions and applies to your use of www.marmosetmusic.com (the "Site"), whether you are accessing the Site via a personal computer, a wireless or mobile device or any other technology or device now known or hereafter developed or discovered (each, a "Device"). The Site is made available by Marmoset LLC ("Marmoset", "we", "our" or "us") and the term "Site" includes all (a) websites and web pages within the Site, as well as any equivalent, mirror, replacement, substitute or backup websites and web pages that are associated with the Site and (b) all products, applications, features, functionality and services offered by Marmoset on the Site (collectively, "Site Services"). This Agreement governs only the Site, and the content, features, and activities made available on the Site, and does not govern other websites or any corresponding content, features, and activities made available by any third party, unless specifically stated.
Use of the Site (excluding use of the songs embodied on the Site) is free to all Users. If Marmoset terminates your use of or registration to the Site because you have breached this Agreement, the Additional Terms or the Rules, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration payable by you.
3. USER CONDUCT
You are solely responsible for your conduct on the Site and the use of the Site for unlawful or harmful activities is not allowed. You represent, warrant and agree that, in connection with your use of the Site, you shall not:
- ▶intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- ▶submit, post, email, display, transmit or otherwise make available on, through or in connection with the Site any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- ▶submit, post, email, display, transmit or otherwise make available on, through or in connection with the Site any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- ▶intentionally or unintentionally engage in or encourage conduct that affects adversely or reflects negatively on Marmoset, the Site (including, without limitation, artists and composers whose works are available on the Site), our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Site, or from advertising, linking or becoming a supplier to us in connection with the Site;
- ▶submit, post, email, display, transmit or otherwise make available on, through or in connection with the Site any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- ▶use the Site to engage in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Site, whether or not for financial or any other form of compensation or through linking with another website or web page;
- ▶modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Site or the rights or use or enjoyment of the Site by any other User;
- ▶impersonate any person or entity, or falsely state or otherwise represent your affiliation with a person, entity or User Posting (as defined herein), transmit or otherwise make available on, through, or in connection with the Site false or misleading indications of origin, information or statements of fact;
- ▶forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Site, including User Postings (as defined herein);
- ▶solicit passwords or personal identifying information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, "spidering", "screen scraping,", "phishing", "database scraping," or any other activity with the purposes of obtaining lists of Users or other information.
Marmoset reserves the right to investigate and take appropriate legal action against anyone who, in MARMOSET’s sole discretion, violates, or is suspected of violating, this Section 3, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that we may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer or technical service; or (v) protect the rights, property or personal safety of Marmoset, its Users or any third parties.
4. PROPRIETARY RIGHTS
As between you and Marmoset, Marmoset owns, solely and exclusively, all right, title and interest in and to the Site and all content contained and/or made available on, through or in connection therewith (the "Content"), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term "Content" includes, without limitation, all video (and the sound recordings and musical compositions embodied therein), audio sound recordings and the musical compositions embodied therein, artwork, photographs, illustrations, graphics, logos, copy, lyrics, text, computer code, data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Site, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Site, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein including all goodwill, and including with respect to any content contained and/or made available in any advertisements or information presented to you via the Site. Unless the context clearly requires otherwise or we explicitly set forth in writing, the term "Site" includes "Content" as well.
You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Site, including, without limitation, notices on any Content you license from us, or which Content you transmit, display, print, stream or reproduce from the Site. Except as expressly authorized by Marmoset (e.g., pursuant to Site Services that allow for the use of embeddable or viral features, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of Marmoset or its owner if Marmoset is not the owner. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect copyrights, trademarks, and other intellectual property rights and we shall aggressively enforce same to the fullest extent of the law, including seeking criminal prosecution. We likewise respect the intellectual property of others. If you believe that the Site contains elements that infringe your copyrights in your work, please follow the procedures set forth below.
If you are a copyright owner or an agent thereof and believe that any content on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- ▶A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- ▶Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works on the Site;
- ▶Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- ▶Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, email address;
- ▶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;
- ▶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.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Name and Address of Designated Agent: Ryan Wines, c/o Marmoset LLC, 2105 SE 7th Avenue, Portland, Oregon 97214. Email Address: firstname.lastname@example.org. For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to Marmoset by sending an email to email@example.com. You acknowledge and agree that if you fail to comply with all of the requirements set forth above in this section, your DMCA notice may not be valid.
If you believe your content that we removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to Marmoset for use on the Site, you may send a counter-notice containing the following information to our Copyright Agent:
- ▶Your physical or electronic signature;
- ▶Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- ▶A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
- ▶Your name, address, telephone number, and, if applicable, email address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
5. PERSONAL INFORMATION
6. USE OF THE SITE
In order to access and use certain content, features, functionality and/or Site Services, we shall require you to become a registered user of the Site and have a unique username and password combination (collectively, a "User ID"). If you elect to become a registered User of the Site, you are responsible for maintaining the strict confidentiality of your User ID, and you shall be responsible for any access to or use of the Site by you or any person or entity using your User ID, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. You agree to (a) immediately notify Marmoset of any unauthorized use of your User ID or account or any other breach of security, and (b) ensure that you log off from your account at the end of each session. It is your sole responsibility to (i) control the dissemination and use of your User ID, (ii) control access to your account, and (iii) cancel your account on the Site. We reserve the right to deny access, use and registration privileges to any User of the Site if we believe there is a question about the identity of the person trying to access any account or element of the Site. Marmoset shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 6. You may access and listen to our catalog of sound recordings and compositions on the Site; however, a User ID is required as a prerequisite for you to license same. You may use our music catalog on the Site to:
- ▶Stream music via the Marmoset Music Player and Marmoset Radio
- ▶Create a User ID to access specific site functions (e.g., store songs, share mixtapes, share songs through social media or to download for personal use, etc.). You will be prompted to create a User ID for any function with respect to which a User ID is required.
- ▶License music for synchronization to a film or slideshow
- ▶Download low quality scratch tracks at no cost for testing and licensing approval purposes
- ▶Create, share and edit Mixtapes
- ▶Share music links via social media
You may license music from our catalog using features on the Site only if you pay in full the prices and fees (including, without limitation, all applicable taxes) for any purchases you make via credit, debit or charge card or other payment means acceptable to Marmoset concurrent with your online order. If payment is not received by us from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us.
7. USER POSTINGS
The Site may provide you and other Users with an opportunity to participate in blogs, web communities and other message, comment and communication features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available photographs, graphics, comments, reviews, links, materials, ideas, opinions, messages and other information via the Site (each, a "User Posting", and collectively, "User Postings"). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User ID, a descriptive title, information about the User Posting, your location and/or similar information. By submitting User Postings, you acknowledge and agree that the term "User Posting" also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your User Posting.
You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of Marmoset and you understand that by using the Site, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, Marmoset does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall Marmoset be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
You may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that Marmoset shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term "Unauthorized Posting" means any User Posting that is or may be construed as violating any of the terms and conditions of this Agreement or is deemed to be unacceptable to us, as we determine in our sole discretion.
In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to Marmoset the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Site and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to us, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to Marmoset shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Site as a registered User or not.
We do not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you are not a minor and you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions or, if you are a minor, your parent or legal guardian has agreed to this Agreement on your behalf; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings. In no event shall we be responsible for or shall be deemed to endorse any content in a User Posting.
You acknowledge that other persons may have submitted User Postings to us, may have made public or developed, or may originate, submit, make public or develop, material similar or identical to all or a portion of your User Postings or concepts contained therein, and you understand and agree that you shall not be entitled to any compensation because of the use or exploitation thereof and the submission of User Postings, or any posting or display thereof, is not any admission of novelty, priority or originality. Even if you subsequently see or learn of a presentation, sound recording, composition, demo, idea, script, drawing, motion picture, photograph, film, video or any other content which appears to incorporate any idea or concept or include anything similar or identical to that contained in any User Posting you or anyone else submits, that is purely coincidental and unavoidable.
From time to time, you may choose to communicate with, interact with, or obtain goods and services of or from third parties such as our advertisers, sponsors, or promotional partners (collectively, the "Advertisers") found on or through the Site or a linked site. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
Marmoset may conduct promotions on, through or in connection with the Site, including, without limitation, contests and sweepstakes (collectively, the "Promotions"). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you and, for purposes of each Promotion, shall be deemed incorporated into and form a part of this Agreement.
10. THIRD PARTY LINKS
You agree to defend, indemnify and hold Marmoset, its successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, suppliers, vendors and operational service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, "Claims"), arising in any way out of or in connection with (a) your use of the Site, (b) your breach or violation this Agreement or (c) your User Postings. Marmoset 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 our defense of such Claim.
12. DISCLAIMER, LIMITATIONS OF LIABILITY
This site, and all content, products, services and user postings are made available on an "as is" and "as available" basis, without any representation or warranty of any kind, express or implied, or any guaranty or assurance the site will be available for use, or that all products, features, functions, services or operations will be available or performed as described.
Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the site. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the site, including, without limitation, user postings and content associated with your use of the site.
You further understand and acknowledge the capacity of the site, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, without limitation, user postings, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that we assume no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or user postings or for any failure or delay associated with any user postings and you are hereby expressly advised not to rely upon the timeliness or performance of the site for any transactions or use postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this agreement may not apply to you.
13. GOVERNING LAW
The validity, interpretation and legal effect of this agreement shall be governed by the laws of the state of Oregon applicable to contracts entered into and performed entirely within the state of Oregon. You agree that the state and federal courts located in Multnomah County, Oregon shall have exclusive jurisdiction over claims or disputes arising under or otherwise in connection with this agreement, and you hereby submit the jurisdiction of such courts. Notwithstanding the foregoing, we and our assignees, successors and designees may seek injunctive or other equitable relief in any jurisdiction to enforce the terms of this agreement and our rights hereunder.
Copyright © 2013 MARMOSET LLC