3. Ownership of Program and Content. The Program is owned and operated by Indistry. Unless otherwise stated, all material on this Program, in whole and in part, is the property of Indistry. Unless otherwise stated, all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively the “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Program is owned, controlled or licensed by or to Indistry or third parties, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. None of this Content is in the public domain. As such, no portion of this Program may be downloaded, distributed, published, altered, stored, transmitted, or copied, electronically or by any other means known now or in the future, without express written permission from Indistry or its designated agents. Content may be watermarked, visibly and nonvisibly, to track and assure copyright protection. Violating copyright or trademark laws carries significant penalties. Indistry will enforce its intellectual property rights. No part of the Program and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Program or other medium for publication or distribution or for any commercial enterprise, without the express prior written consent of Indistry or the direct owners of the Content. Also protected are all application, database, web page and web server programming, and other software created by, or licensed by, Indistry for the development, production, and operation of this Program, its internal platforms, and the host computer network.
4. Modification and Termination of Program. Indistry reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Program and/or Services, or any portion of the Program and/or Services, for any reason; (2) to modify or change the Program and/or Services, or any portion of the Program and/or Services, and any applicable policies or terms, including those concerning artist compensation; and (3) to interrupt the operation of the Program and/or Services, or any portion of the Program and/or Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes. Your continued use of the Program and/or Services following the posting of changes will mean that you accept and agree to the changes. You agree that Indistry shall not be liable to you or any third party for any modification or discontinuance of the Service or Program, or any portion thereof.
8. Notification of Claimed Copyright Infringement. Indistry respects the intellectual property rights of others, and we ask our users to do the same. Indistry may, in its sole discretion, terminate the accounts of producers who violate others’ intellectual property rights. If you believe that your work has been copied in any way that constitutes infringement on the Program, you may file a notification of such infringement with our designated agent at customer firstname.lastname@example.org and provide the following information: (a) identification of the copyrighted work that you believe to be infringed, including a description of the work, a copy of the work or identification of the location (e.g., URL) of an authorized version of the work; (b) identification of the material you believe to be infringing and its location; (c) your name, address, telephone number and (if available) e-mail address; (d) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (d) a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf and (e) a signature or the electronic equivalent from the copyright holder or authorized representative. Please see 17 U.S.C. §512(c)(3) for the full requirements of a proper notification. You should also note that if you make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for all damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing. We may give notice of a claim of copyright infringement to our users by means of a general notice on the website or Program, electronic mail to a user’s email address in our records or by written communication sent by first-class mail to a user’s address in our records.
9. SMS Text Message Alert Service. Indistry may make SMS text message alert services available to Users. Users who decide to use this service will receive SMS text message notifications on their cellular phones and/or mobile devices. Use of the SMS text message service is voluntary, and if you decide to use this service, you are giving Indistry permission to send SMS text messages to your cellular phone and/or mobile device. We do not charge for this service, but your carrier may charge you.
11. Limitation of Liability. EXCEPT WHERE OTHERWISE PROHIBTED BY LAW, INDISTRY WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFIT OR DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR PROGRAM. INDISTRY WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND THE REASONABLE CONTROL OF INDISTRY, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS. IN NO EVENT WILL INDISTRY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH THE SERVICES OR PROGRAM EXCEED THE AMOUNT OF MONEY RECEIVED FROM YOU, IF ANY, BY INDISTRY DURING FROM THE PRIOR 12-MONTH PERIOD OF YOUR SUBSCRIPTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS HEREIN MAY NOT APPLY TO CONTENT PROVIDER. FOR INSTANCE, IF CONTENT PROVIDER IS A CALIFORNIA RESIDENT, CONTENT PROVIDER AGREES TO WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
12. DISCLAIMERS. INDISTRY DOES NOT PROMISE THAT THE PROGRAM OR ANY CONTENT, SERVICE OR FEATURE OF THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE PROGRAM WILL PROVIDE SPECIFIC RESULTS. THE PROGRAM AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE PROGRAM IS SUBJECT TO CHANGE WITHOUT NOTICE. INDISTRY CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU ACCESS FROM THE PROGRAM WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. INDISTRY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, TITLE, CUSTOM, USE AND FITNESS FOR A PARTICULAR PURPOSE. INDISTRY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT USER CONTENT OR INFORMATION WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS AND SHALL NOT BE LIABLE THEREFOR. INDISTRY HEREBY EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY RELEASE INDISTRY FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES OR DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE. INDISTRY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE PROGRAM AND/OR ANY INDISTRY SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE PROGRAM AND ANY LINKED SITES. Indistry hereby expressly disclaims, and you hereby expressly release Indistry from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to the Service or your interactions or dealings with other Users, including without limitation any acts and/or omissions of Users online or offline. YOUR SOLE REMEDY AGAINST INDISTRY FOR DISSATISFACTION WITH THE PROGRAM OR ANY CONTENT IS TO STOP USING THE PROGRAM OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. This disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
16. Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND INDISTRY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Indistry agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
17. Void Where Prohibited. Indistry administers and operates the Program from its location in Cook County, Illinois USA. Although the Program is accessible nationwide, not all features, products or services discussed, referenced, provided or offered through or on the Program are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Indistry reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Program is void where prohibited. If you choose to access the Program from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
21. Description of Emerging Artist Channel. Indistry offers a wide range of interactive services to its customers. One of the integral services presented to customers is the Emerging Artist Channel platform (the “EA Platform”), which provides emerging musical artists (bands, musical groups and individual musicians, for example) with a user account and personalized channel through which to interact and engage with fans (the “Channel”). Through Indistry, musical artists are provided with the opportunity to have their own Channel through which they may display music videos, live experiences, promotional initiatives, and User Content (as defined below) and offer for sale their music and merchandise, and Indistry users are provided with the ability to access and view User Content from these Channels. Indistry also offers interactivity features that provide artists with the ability to layer in social media timelines on their Channels, which allows users to share and see artist posts in real time over certain content. In exchange for the right to exploit the artist assets you submit to Indistry, you will receive consideration in a form and amount as reflected on Indistry’s then-applicable Compensation Schedule, which is incorporated by reference herein as Schedule A, and which Indistry may amend from time to time in its sole discretion. Once Indistry has approved your submission and agrees to activate your Channel, you may request a copy of the current Schedule A by clicking HERE.
22. Use of Channels.
B. Collection of Data by You. If you collect content and information directly from users of the EA Platform, you will make it clear that you (and not Indistry) are collecting it, and you will provide notice about and obtain user consent for your use of the content and information that you collect. Regardless of how you obtain content and information from users, you are responsible for securing all necessary permissions to reuse their content and information. You will not collect users’ information, or otherwise access Indistry, using automated means (such as harvesting bots, robots, spiders, or scrapers) without Indistry’s permission. Don’t use information obtained from a person’s interaction with your call-to-action for any purpose other than to provide the service associated with the call-to-action. If you want to use this information for any other purpose, first obtain a person’s explicit consent.
C. Offers or Promotions. From time to time, Indistry and you may agree to present offers or promotions through your Channel. In the event you are responsible for generating the materials associated with any such offer or promotion, you must comply with the following rules: (i) your offer must be available for a limited time; (ii) you must clearly and prominently disclose any restrictions on your offer (such as expiration date or limitations on redemption); (iii) you are solely responsible for improper redemption, fraud, disputes or other issues that arise from the distribution and/or redemption of your offer; (iv) you are responsible for ensuring that your offer complies with these terms and all applicable laws, rules and regulations. Offers are subject to many regulations (such as alcohol discounts and offers marketed to minors) and if you are not certain that your offer complies with applicable law, consult with an expert. If you use Indistry to communicate or administer a promotion (ex: a contest or sweepstakes), you are responsible for the lawful operation of that promotion, including: (i) the official rules; (ii) offer terms and eligibility requirements (ex: age and residency restrictions); and (iii) compliance with applicable rules and regulations governing the promotion and all prizes offered (ex: registration and obtaining necessary regulatory approvals). Promotions on Indistry must include a complete release of Indistry by each entrant or participant and an acknowledgement that the promotion is in no way sponsored, endorsed or administered by, or associated with, Indistry.
23. Termination of Artist Channel. Indistry may, in its sole discretion, for any reason or no reason, with or without notice (i) terminate or suspend your Channel, and your access to the EA Platform, and/or (ii) remove your Profile and/or any User Content posted by or about you, from the EA Platform. Unless otherwise decided by Indistry, such termination, suspension, and/or removal will be effective immediately. Following any termination or suspension of any Channel, Indistry may send a notice of the termination or suspension to other Users you have corresponded with. If your Channel has been terminated by Indistry, you may not re-register without Indistry’s consent (and if you are permitted to re-register, your previous information and activity, including any fee credits, may no longer be available). You may terminate your Channel at any time by completing the cancellation form available HERE. Your cancellation will be effective at the end of the month in which you submit your notice of termination to Indistry. Following termination, Indistry shall pay to you any outstanding compensation on a pro rata basis and in accordance with Schedule A within ninety (90) days following the termination of your Channel. You may seek to re-activate your Channel at any time, but your previous information and activity, including any User Content you may have created, may no longer be available. Upon the termination of your Channel, you will no longer have access to your Channel, or to portions of the EA Platform and Services that require an active account. If your Channel is terminated, it will no longer be accessible. Any User Content associated with your Channel after your account’s termination may not be available to you if you re-activate your Channel with Indistry. Upon termination, Sections 3, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of these Terms of Service will continue in full force and effect.
24. Pricing and Availability. All prices are shown in United States dollars. Taxes, shipping and handling charges are additional. All items are subject to availability, and Indistry reserves the right to impose quantity limits on any order, to reject all or part of an order and to discontinue services without notice, even if you have already placed your order. All prices are subject to change without notice and you agree that taxes may be adjusted from the amount shown on the billing screens. Several factors may cause this, such as variances between processor programs and changes in tax rates.
25. Personal Use. Your purchase of a subscription provides you with the limited right to access the Program for your own personal, non-commercial use and not for use in the operation of a business or service bureau, for profit or for the benefit or any other person or entity.
27. Payment; Credit for Refunds. Only valid credit cards or other payment method acceptable to Indistry may be used, and all refunds will be credited to the same card or, in Indistry’s discretion, other method. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize Indistry to charge your order (including taxes, shipping, handling and any other amounts described on the Websites) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. Regarding “Your Account,” you agree to keep all payment cards or other payment method information current and that Indistry may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem Indistry encounters in order to proceed with your order.
28. Online Payment Service. Indistry may use third-party payment processing services to process credit card payments and information in connection with the payment of membership fees and other amounts payable in connection with the Service. Indistry may also offer an online payment service to facilitate payments between Users, which may be subject to availability based on geographic area, subscription enrollment or other basis, as determined by Indistry. Indistry hereby expressly disclaims, and you hereby expressly release Indistry from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to Indistry’s use of third-party payment processing services, including without limitation for any damage that may result should any such information be released to any third parties. For further information about Indistry’s use of payment processing services, please contact Indistry by email at support@Indistry.com.
30. Fair Credit Reporting Act. Pursuant to the Fair Credit Reporting Act (the “FCRA”), if you choose to participate in a Third Party Verification Service, it may, as part of that service, obtain a consumer report about you from a consumer reporting agency. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including, but not limited to, consumer credit, criminal history, workers’ compensation, driving, employment, military, civil, and educational data and reports. If you use or access information provided by a Third Party Verification Service, you warrant that you will use such information only for a purpose permitted by the FCRA and that you will comply with any and all applicable obligations of the FCRA, which can be found at http://www.ftc.gov/os/statutes/fcrajump.shtm, as well as all other applicable consumer reporting laws. If you decide to access, use, or share information provided by a Third Party Verification Service with any other party (either through this Program or otherwise), you agree to do so in accordance with applicable law and to indemnify and hold harmless Indistry from any loss, liability, damage, or costs that may result from such access, use, or sharing of this information, regardless of the cause. Indistry does not assume and expressly disclaims any liability that may result from the use of information provided by a Third Party Verification Service.