TERMS OF USE AGREEMENT
PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY DESCRIBE YOUR
RIGHTS AND RESPONSIBILITIES
This is the official Terms of Use Agreement ("Agreement")
for http://www.addictedtonoise.com ("Site," "we,"
"us," or "our"), an Internet website
offered in cooperation or connection with MTV Networks ("MTVN"),
a division of Viacom International Inc.'s television channels or programming
services ("MTVN Channels"). The MTVN Channels
and the Site (together, "Addicted To Noise") are provided
by MTVN, and together with Viacom International Inc., referred to herein
as the "Parent Companies". This Agreement governs only
the content, features, and activities related to this Site and does
not cover websites for any other MTVN programming channel, MTVN's "Jobhunt"
website, the Parent Companies and any subsidiaries and affiliates of
Addicted to Noise and the Parent Companies (collectively, "Affiliates"),
or any other company, unless specifically stated.
This Site is offered and made available only to users 14 years of age
or older who reside in the United States of America,
its territories and possessions ("U.S.").
If you are not yet 14 years old or the required greater age for certain
features, or do not reside in the U.S., please discontinue using the
Site immediately, or if for any reason, you do not agree with all of
the terms and conditions contained in this Agreement, please discontinue
using the Site immediately because by using or attempting to use the
Site, you certify that you are at least
14 years of age and meet any other eligibility and residency requirements
of the Site.
These terms and conditions regarding your use of the Site constitute
a legally binding agreement between you and the Site and the Parent
Companies. In this Agreement, the term "Site" includes all
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. By using this Site, you understand, acknowledge and agree
that you will abide by the terms of this Agreement and any additional
terms that govern certain products and services, which will be presented
in conjunction with those products and services ("Additional
Terms"), including the User Content Submission Agreement which governs your submission of User Content as such term
is defined therein. The Site may also provide rules of participation
("Rules") for certain activities and services including,
but not limited to, contests and sweepstakes, award programs, membership
clubs, email, and dating services. The Site's Additional Terms and the Privacy Policy and the Rules are hereby
incorporated in this Agreement by reference. To the extent that there
is a conflict between this Agreement and Additional Terms for the activity
in which you choose to participate, the Additional Terms shall govern.
To the extent that there is a conflict between this Agreement and the
specific Rules for the activity in which you choose to participate,
the Rules shall govern. This Agreement will remain in full force and
effect as long as you are a user of the Site and in the event of termination
of any membership, service or feature, you will still be bound by your
obligations under this Agreement, the Privacy Policy,
any Additional Terms or Rules, including any indemnifications, warranties
and limitations of liability.
The words "use" or "using" in this
Agreement means any time an individual (a "user"),
directly or indirectly, with or without the aid of a machine or device,
does or attempts to access, interact with use, display, view, print
or copy from the Site, transmit, receive or exchange data or communicate
with the Site, or in any way utilizes, benefits, takes advantage of
or interacts with any function, service or feature of the Site, for
any purpose whatsoever. This Agreement does not cover your rights or
responsibilities with respect to third party content or sites or any
links that may direct your browser or your connection to third party
sites or pages. This is the entire and exclusive Agreement between you
and us regarding use of the Site and it cannot be modified, except as
specifically described below in Section 2.
1. REGISTRATION
We may require each user to have a unique user name and password combination
in order to access and use certain features or functions of the Site
and may also, from time to time, provide users with additional codes
or passwords necessary to access and use certain features or functions
of the Site. Please read our Privacy Policy,
which describes the personally identifiable information ("Personal
Information") we collect, use, disclose, manage and store.
As part of the registration process for the feature or function, you
will choose a user name and password (or we may assign an initial password
which we will give you the option to change). Your user name and password
are personal to you and you may not allow any others to use your user
name or password under any circumstances. We are not liable for any
harm caused or related to the theft or misappropriation of your user
name or password, disclosure of your user name or password, or your
authorization of anyone else to use your user name or password. You
agree to immediately notify us if you become aware of or believe there
is or may have been any unauthorized use of (or activity using) your
user name or password or any other need to deactivate your user name
or password due to security concerns.
2. MODIFICATIONS
We reserve the right, at any time and from time to time, for any reason
in our sole discretion, to change the terms of this Agreement. We will
post or display notices of material changes on the Site and/or e-mail
you or notify you upon login about these changes; the form of such notice
is at our discretion. Once we post them on the Site, these changes become
effective immediately and if you use the Site after they become effective
it will signify your agreement to be bound by the changes. You should
check back frequently and review the terms and conditions of this Agreement,
including, but not limited to, the User Content Submission Agreement,
other Additional Terms, Rules and Privacy Policy, regularly so you are
aware of the most current rights and obligations that apply to you and
the terms and conditions of your agreement with us.
3. OWNERSHIP OF INTELLECTUAL PROPERTY
The contents of this Site, including all Site software, design, text,
images, photographs, illustrations, audio and video material, artwork,
graphic material, databases, proprietary information and all copyrightable
or otherwise legally protectible elements of the Site, including, without
limitation, the selection, sequence and 'look and feel' and arrangement
of items, and all trademarks, service marks and trade names (individually
and/or collectively, "Material"), are the property
of the Parent Companies, and their Affiliates, and any of their successors
and assigns, and any of their respective licensors, Advertisers (as
defined below), suppliers, and operational service providers and are
legally protected, without limitation, under U.S. Federal and State,
as well as applicable foreign laws, regulations and treaties. Unless
the context clearly requires otherwise or we explicitly say so in writing,
the term "Site" includes "Material" as well. The
Site is to be used solely for your noncommercial, non-exclusive, non-assignable,
non-transferable and limited personal use and for no other purposes.
You must not alter, delete or conceal any copyright or other notices
contained on the Site, including notices on any Material you download,
transmit, display, print or reproduce from the Site. You shall not,
nor will you allow any third party (whether or not for your benefit)
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 otherwise use, any Material without the express prior written consent
of MTVN or its owner if MTVN is not the owner. Any unauthorized or prohibited
use of any Material may subject you to civil liability, criminal prosecution,
or both, under applicable federal, state and local laws. We require
users to respect our copyrights, trademarks, and other intellectual
property rights. We likewise respect the intellectual property of others.
On notice, we will act expeditiously to remove content on the Site that
infringes the copyright rights of others and will disable the access
to the Site and its services of anyone who uses them to repeatedly to
infringe the intellectual property rights of others.
We take protection of copyrights, both our own and others, very seriously.
We therefore employ multiple measures to prevent copyright infringement
over this Site and to promptly end any infringement that might occur.
If you believe that the Site contains elements that infringe your copyrights
in your work, please follow the procedures set forth in our Copyright Compliance Policy.
As set forth in Section 6 of
the User Content Submission Agreement, Addicted To Noise acquires no title or ownership rights in
or to any User Content.
4. ADVERTISING
From time to time, you may communicate
with, receive communications from, be re-directed to, interact with,
or participate in or use the services or obtain goods and services of
or from, third parties (collectively, the "Advertisers")
such as our advertisers, sponsors, or promotional partners. as a result
of your use of the 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).
5. RULES OF CONDUCT
Your use of the Site is subject
to all applicable local, state, national laws and regulations and, in
some cases, international treaties. You are solely responsible for all
activities, acts and omissions that occur in, from, through or under
your user name or password. You shall not use, allow, or enable others
to use the Site, or knowingly condone use of this Site by others, in
any manner that is, attempts to, or is likely to:
- be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
- affect us adversely or reflect negatively on us, the Parent Companies, Affiliates, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise 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;
- send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called "spamming" and "phishing";
- be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;
- transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
- forge any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason;
- violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise; gain unauthorized access to the Site, other users' accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Site or to use the Site in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
- modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Site or the rights of use and enjoyment of the Site by any other person, firm or enterprise; or
- collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of the Site, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so.
6. SHOPPING
If e-commerce is offered on the Site, all e-commerce is brought to you
by MTV Direct Inc., an operational service provider and Affiliate under
this Agreement. All goods and services offered for sale on the Site
("Products") are guaranteed by the manufacturer, licensor
or distributor against defects in material and workmanship for 30 days
from the date of the invoice. Within that time period, just contact Customer Service ecommerce@addictedtonoise.com and we will coordinate attempting
to correct, repair or replace the defective Product or, if applicable,
in obtaining a refund for you. We have no responsibility or liability
whatsoever for goods or services you may obtain from or through other
websites or web pages, even if you were directed or linked to such a
site or page through the Site, nor are we responsible for assisting
you in correcting any problem you may experience with Products if you
do not notify us within the 30 day period noted above or for any goods
or services not obtained directly on the Site. You agree that your sole
and exclusive remedy and our sole, exclusive and maximum liability arising
from or relating in any way to any Product shall be the amount you actually
paid us (or our suppliers, operational service providers, or other e-commerce
partners) for it. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY ARISING FROM OR RELATING
IN ANY WAY TO ANY AND ALL PRODUCTS. EXCEPT AS SPECIFICALLY MADE IN WRITING,
WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY AND
EVERY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL PRODUCTS,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
Products may be purchased while supplies last. If a Product is listed
at an incorrect price or with incorrect information, we reserve the
right to refuse or cancel orders placed for that Product, whether or
not the order has been confirmed and even if your account has been charged
(in which event we will issue a credit to your account in the amount
of the charge).
Our creation or transmission of an order confirmation does not signify
acceptance of your order, nor constitute a binding confirmation of an
offer to sell any Product and we reserve the right to accept or decline
your order for any reason up until the time the Product is actually
delivered to you. We reserve the right at any time, without prior notice,
to limit or reduce the quantity you ordered of any Product and we will
notify you if we do so. All orders placed over $500.00 (U.S.) must obtain
pre-approval with an acceptable method of payment, as established by
our credit and authorization policies and practices in effect at the
time of your order. We may contact you and require additional information
from you before we grant such pre-approval. Products on the Site are
offered for sale only to end user customers or as personal gifts to
end user customers and not for resale. We do not knowingly accept orders
from dealers, exporters, wholesalers, distributors, resellers or other
similar persons or companies, and reserve the right to refuse, cancel
or seek the return of any Products that are purchased in violation of
the foregoing restrictions.
You are responsible for any taxes imposed on the sale or use of Products
and applicable taxes will be added to the amount charged for Products
purchased on the Site. If an order consists of multiple items, they
may be shipped separately depending on availability.
7. WIRELESS MARKETING SERVICES AND PROMOTIONAL OPPORTUNITIES
Addicted To Noise may provide users
and viewers with the opportunity to register for special promotions,
services, news, programming and information delivered via text messaging
and other wireless devices such as mobile phones. Users are required
to provide their consent to receive such information from Addicted To
Noise, either by registering on this Site or via their wireless device.
Such services and promotional opportunities are provided by the Parent
Companies or Affiliates for Addicted To Noise. The information requested
as part of the online registration process is a user's telephone number
or a wireless email address, but only if specifically requested, and
the carrier's name. Optional information may be requested for specific
promotions, such as a user's preferences regarding goods or services,
choices of music or artists, or other similar survey information. Depending
on the promotion, we may also collect an Internet email address or other
information and, depending on the information collected, the user may
also be required to confirm his or her agreement to this Agreement and,
including without limitation, the Privacy Policy.
Users that register for Addicted To Noise's wireless marketing services
acknowledge, understand and agree that they will be charged by the user's
wireless carrier for all messages sent to the user from Addicted To
Noise. Standard messaging rates will apply, unless noted otherwise.
Under no circumstances will Addicted To Noise, the Parent Companies
or any Affiliates be responsible for any wireless email or text messaging
charges incurred by a user or by a person that has access to a user's
wireless device, telephone number, or email address.
A user understands, acknowledges and agrees that Addicted To Noise may,
at its sole discretion and without liability to any user, terminate
its offer of any specific wireless marketing service or all wireless
marketing services at any time without advance notice. Addicted To Noise
may provide notice of terminations or changes in services on this Site.
8. VIRAL FEATURES
There may be portions of our Site, content,
functionality or features (e.g, digital streaming media player(s))
("Viral Features") that we make available to users
for your personal use. While we can obviously change how, to whom and
to what extent we make these Viral Features available at any time without
any notice and in our sole discretion, so long as they are available
to you, whenever you visit our Site or take advantage of any of these
Viral Features (whether you use these Viral Features on your own personal
or customized web pages, whether they are displayed or appear embedded
or housed within a web page or website of anyone else, whether a commercial
website or web page, an advertisement, promotional message or even a
personalized or customized web page of a friend or through any device
that can access any of these Viral Features) you agree not to download
any content made available as part of the Viral Features and acknowledge
that such content is available only for streaming viewing and, further,
that you are bound by the applicable provisions of this Agreement and
our Privacy Policy.
9. POSTINGS
Your comments, suggestions and information are important to us. Portions
of this Site may provide you and other users an opportunity to participate
in forum services, blogs, web communities and other message and communication
facilities ("Communities") and may provide you with the opportunity,
through such Communities or otherwise, to submit, post, display, transmit
and/or exchange (a) information, ideas, opinions, messages or other
information ("Post" or "Postings") and (b) User
Content (as defined in the User Content Submission Agreement), your submission of which
is also governed by the terms and conditions therein, and considered
a Posting for purposes of this Agreement. You understand, acknowledge
and agree that such Postings are the sole responsibility of the person
from which such Postings originated. This means that you are solely
and entirely responsible for the consequences of all Postings that you
upload, post, email, transmit or otherwise make available via the Site.
Postings do not reflect the views of the Site, Addicted To Noise, the
Parent Companies or the Affiliates. We reserve the right to monitor,
edit or screen any Postings. If we determine, in our sole discretion
and judgment, that any Posting does or may violate any of the terms
of this Agreement, we reserve the right, at any time and without limiting
any and all other rights we may have under this Agreement, at law or
in equity, to: (i) refuse to allow you to Post; (ii) remove and delete
Postings; (iii) revoke your right to use the Site; and/or (iv) use any
technological, legal, operational or other means available to us to
enforce the provisions of this Agreement, including, without limitation,
blocking specific IP addresses or deactivating your registration on
the Site.
If a Posting originates from you or your account, you hereby agree that:
(A) you specifically authorize the Site, Addicted To Noise, the Parent
Companies and their Affiliates to use such Posting in whole or in part,
throughout the universe, in perpetuity in or on any and all media, now
known or hereafter devised, and alone or together or as part of other
information, content and/or material of any kind or nature; (B) you
represent and warrant that (i) the Posting is original to you and/or
fully cleared for use as contemplated herein, (ii) the Posting does
and will not, in any way, violate or breach any of the terms of this
Agreement, (iii) the Posting does not contain libelous, tortious, or
otherwise unlawful information, infringe or violate any copyright or
other right, or contain any matter the publication or sale of which
will violate any federal or state statute or regulation, (iv) the Posting
is not obscene or in any other manner unlawful, (v) the Posting shall
not be injurious to the health of any user, and (vi) we shall not be
required to pay or incur any sums to any person or entity as a result
of our use or exploitation of the Posting; and if your Posting incorporates
the name, logo, brand, service or trademark, voice, likeness or image
of any person, firm or enterprise, you specifically represent and warrant
that (1) you have the right to grant the Site, Addicted To Noise,
the Parent Companies and their Affiliates the right to use all such
Postings as described above, (2) the Posting was produced in compliance
with all applicable laws and regulations and (3) for any User Content
Posting that contains original videos, you will comply with any applicable
identification verification and record-keeping requirements, and you
will secure and maintain the requisite personal information and identification
documentation for all individuals who appear in any such original videos,
as may be required by law and/or otherwise requested or required by
us in connection with our corporate compliance policies and practices,
which includes (y) the individual's full legal name, current address,
date of birth and (z) a legible photocopy of a valid government-issued
identification document (e.g.,
a U.S. passport, state driver's license or valid photo ID card) to
verify the individual's identity. With the submission of each such
Posting, you must deliver a full and complete set of such identification
verification records to us, as well as a legible photocopy of your valid
driver's license, passport or other acceptable government-issued photo
identification for our verification and record-keeping purposes.
In addition, you specifically acknowledge and agree to abide by our
policies regarding governmental certification procedures relating to
the foregoing identification verification and record-keeping procedures
and, if applicable, you will promptly comply with any specific requests
or directions we give you in connection with Postings you submit that
may be subject to these requirements.
You understand, acknowledge and agree
that we have the right to delete, re-format and/or change your Postings
in any manner that we may determine (although you will not be responsible
for any such changes made). The amount of storage space on the Site
per user is limited. Some Postings may not be processed due to space
constraints or outbound message limitations. You understand, acknowledge
and agree that we assume no responsibility for deletion of Postings
or any failure to store, receive or deliver Postings in a timely manner
or any other matter relating to Postings. Posting is for noncommercial
purposes only and you may not Post in any manner which does or is intended
to promote or generate revenue for any business enterprise or commercial
activity.
If you believe that any content on the Site (including, without limitation,
Postings) violates any of the terms of this Agreement (except for any
notices covered by the Copyright Compliance Policy), please click
here to send us a message about it (please refer to our Copyright Compliance
Policy for any notices covered by the Copyright Compliance Policy). We
cannot guarantee that we will respond to your message and we reserve
the right to take or refrain from taking any or all steps available
to us once we receive any such message.
10. CONTESTS, SWEEPSTAKES, AUCTIONS AND PROMOTIONS
From time to time, Addicted To Noise, the Parent Companies, the Affiliates
or the Site's operational service providers, suppliers, and Advertisers,
may conduct promotions on or through the Site, including, without limitation,
auctions, contests and sweepstakes ("Promotions").
Each Promotion may have Additional Terms and/or Rules which will be
posted or otherwise made available to you and, for purposes of each
Promotion, will be deemed incorporated into and form a part of this
Agreement.
11. RSS FEEDS and PODCASTS
The Site may provide RSS Feeds ("RSS
Feeds") consisting of selected text, audio, video, and photographic
content ("Content") from the Site that is provided
over the Internet using an XML feed. Certain RSS Feeds may be
podcasts ("Podcasts") which may include as part of
the Content an associated audio, video and/or photographic file where
the audio and/or video file may be downloaded and played from a user's
computer or transferred to a portable listening device. Certain software
and hardware is required for users to download and view and/or play
Content through RSS Feeds.
Content is protected by U.S. Federal and State laws, and applicable
foreign laws, regulations and treaties, and all rights in and to the
Content are reserved to Addicted To Noise or the content provider. Content
is available for personal, noncommercial use only and you may download,
copy and/or transfer to a portable listening or viewing device or a
computer the RSS Feeds and associated Content for your personal, non-commercial
use only. You shall not, nor will you allow any third party to, reproduce,
modify, create derivative works of, display, perform, publish, distribute,
disseminate, broadcast or circulate to any third party, or otherwise
use any Content except as expressly authorized in this Section 11.
By your access to and use of RSS Feeds, you understand, acknowledge
and agree that the Site, Addicted To Noise, the Parent Companies and
their Affiliates do not warrant that its RSS Feeds and/or Podcasts will
operate on all user equipment. Please see the "Disclaimer and Limitations of Liability"
section below for further details.
12. HYPERLINKS TO THIRD PARTY SITES
The appearance, availability, or your use of URLs or hyperlinks referenced
or included anywhere on the Site or any other form of link or re-direction
of your connection to, with or through the Site, does not constitute
an endorsement by, nor does it incur any obligation, responsibility
or liability on the part of, the Site, Addicted To Noise, the Parent
Companies or any of their Affiliates, any of their successors and assigns,
and any of their respective officers, directors, employees, agents,
representatives, licensors, Advertisers, suppliers, and operational
service providers. We do not verify, endorse or have any responsibility
for any such third party sites, their business practices (including
their privacy policies), or any goods or services associated with or
obtained in connection with any such site, whether the Site's, Addicted
To Noise's, the Parent Companies' or any of their Affiliates' logo
or sponsorship identification is on the third party site as part of
a co-branding or promotional arrangement. If any third party site obtains
or collects Personal Information from you, in no event shall we assume
or have any responsibility or liability. Please read our Privacy Policy, which describes how
Addicted To Noise collects and uses your Personal Information and co-branding
relationships.
13. DEACTIVATION/TERMINATION OF YOUR REGISTRATION OR USE
If you are registered to use the Site, you may deactivate your account
on the Site, at any time and for any reason, by signing in, clicking
here to go to "Settings", entering your user name and password, and then selecting
the "Close My Account" option. We may terminate your
use of and registration on the Site, at any time and for any reason,
with or without cause, without prior notice to you and without any liability
or further obligation of any kind whatsoever to you or any other party.
14. ADS and MALWARE
We take great care and pride in creating this Site. We are always on the lookout for technical glitches that effect how the
Site works. When we find them on our end, we will fix them. Unfortunately, your home computer may cause some glitches that
effect how you see our Site -- and that is beyond our control.
If you experience any unusual behavior, content or ads on the Site, it may be the result of Malware on your computer. Malware
-- short for MALicious softWARE -- is a term used to broadly classify a form of software which is installed in a computer
system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses,
key loggers, malicious active content, rogue programs and dialers, among others. While we continuously work closely with our
partners to ensure that everything on the Site is working properly, sometimes Malware programs on your personal computer may
interfere with your experience on our Site and on other sites that you visit.
We suggest that you take some of the following actions which may help to clean your computer and which could prevent future
installations of Malware.
Please note that we cannot be responsible for the effects of any third-party software including Malware on your computer system.
Please make sure to carefully read the Help or Customer Support areas of any software download site.
If you do discover any Malware on your system, we also suggest you speak with a qualified computer technician.
If, after taking the above actions, you are still experiencing any problems, please feel free to contact us webmaster@mtv.com.
15. DISCLAIMER AND LIMITATIONS OF LIABILITY
THIS SITE, AND ALL MATERIALS, PRODUCTS AND 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 OR OPERATIONS WILL BE AVAILABLE OR PERFORM
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, Postings and Materials associated with
your use of the Site.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY
LAW, THIS SITE, ADDICTED TO NOISE, THE PARENT COMPANIES, ANY OF THEIR
AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES,
LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS,
SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT,
IN CONNECTION WITH OR ARISING FROM USE OF THE SITE OR FROM THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
Notwithstanding any claim that a sole or exclusive remedy which is provided
in this Agreement may or does fail of its essential purpose, you specifically
acknowledge and agree that your sole and exclusive remedy for any loss
or damage shall be to have the Parent Companies, upon written notice
from you to us, attempt to repair, correct or replace any deficient
goods or services under this Agreement and, if repair, correction or
replacement is not reasonably commercially practicable for the Parent
Companies, to refund any monies actually paid by you for the Products
involved and to terminate and discontinue 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 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 the
Parent Companies assume no liability, responsibility or obligation to
transmit, process, store, receive or deliver transactions or Postings
or for any failure or delay associated with any Postings and you are
hereby expressly advised not to rely upon the timeliness or performance
of the Site for any transactions or 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.
16. INDEMNIFICATION
You agree to indemnify, defend and hold the Site, Addicted To Noise,
the Parent Companies, and any of their Affiliates, or any of their successors
and assigns, and any of their respective officers, directors, employees,
agents, representatives, licensors, Advertisers, suppliers, and operational
service providers harmless from and against any and all claims, actions,
losses, expenses, damages and costs (including reasonable attorneys'
fees), resulting from any breach or violation of this Agreement by you,
or public posting of your Postings.
The Parent Companies reserves the right to assume, at its sole expense,
the exclusive defense and control of any such claim or action and all
negotiations for settlement or compromise, and you agree to fully cooperate
with the Parent Companies in the defense of any such claim, action,
settlement or compromise negotiations, as requested by the Parent Companies.
17. PRIVACY
We respect your privacy and the use and protection of your Personal
Information. Please see our Privacy Policy
for important information and disclosures relating to the collection
and use of your Personal Information in connection with your use of
the Site.
18. LAW THAT APPLIES TO THIS AGREEMENT; MISCELLANEOUS TERMS
This Agreement, together with any Additional Terms, Rules, our Privacy Policy and any other regulations,
procedures and policies which we refer to and which are hereby incorporated
by reference, contains the entire understanding and agreement between
you and the Site and supersedes any and all prior or inconsistent understandings
relating to the Site and your use of the Site. This Agreement cannot
be changed or terminated orally. If any provision of this Agreement
is held to be illegal, invalid or unenforceable, this will not affect
any other provisions and the Agreement will be deemed amended to the
extent necessary to make it legal, valid and enforceable. Any provision
which must survive in order to allow us to enforce its meaning shall
survive the termination of this Agreement; however, no action arising
out of this Agreement or your use of the Site, regardless of form or
the basis of the claim, may be brought by you more than one (1) year
after the cause of action has arisen (or if multiple causes, from the
date the first such cause arose).
This Agreement and your use of the Site is governed by, construed and
enforced in accordance with the internal substantive laws of the State
of New York (notwithstanding the State's conflict of laws provisions)
applicable to contracts made, executed and wholly performed in New York,
and, for the purposes of any and all legal or equitable actions, you
specifically agree and submit to the exclusive jurisdiction and venue
of the State and Federal Courts situated in the State and County of
New York and agree you will not object to such jurisdiction or venue
on the grounds of lack of personal jurisdiction, forum non conveniens
or otherwise. To the extent it may be applicable, you agree to opt out
from and expressly exclude any applicability of the Uniform Computer
Information Transactions Act. IN ANY ACTION OR PROCEEDING COMMENCED
TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT,
YOUR USE OF THE SITE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU
HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL
BY JURY.
This Terms of Use Agreement was last modified on January 30, 2008 and
is effective immediately.
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