TAGETS.COM SUBSCRIPTION AGREEEMENT |
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Upload License Agreement for Digital MUSIC Content
This Upload License for Digital Music Content (“Agreement”) is between Aura Interactive Inc. or one or more of its affiliated entities, successors or assigns (“Us”, We” and “Our”) at this www.Tagets.com web site (“Tagets Site”) and You, the individual or legal entity uploading digital audio content (“Content”) to the Tagets Site (“You” or “Your”). This Agreement governs your use of the Tagets Site to sell or license music to end users of the Tagets Site.
1. Transactions at the Tagets Site.
(a) This Agreement is conducted electronically and You agree that We may deal with You electronically for transactions at this Tagets Site, including sending You electronic notices and other disclosures, which are deemed received by You when sent from Us to any e-mail address that You provide to Us. If You do not wish to deal electronically with Us, do not upload Content to this Tagets Site. You agree that all notices sent to You will be deemed received by you after they leave our computer system(s) outside the portion of the network controlled by us and provided that we do not receive a “failed delivery” notice in return.(b) We hereby grant you a non-exclusive, revocable license to access the Tagets Site solely for the purpose of uploading Your Content to the Tagets Site to avail Yourself of the services offered at this web site. You agree that all information, software and functionality of the Tagets Site are owned by Us and that, except for Your Content, you will not copy, download, sell, rent, sublicense, display, alter, decompile, disassemble or reverse engineer any portion of the Tagets Site or its functionality. You agree that We may restrict or suspend Your access to the Tagets Site with or without notice at any time. You also agree that we may suspend or modify any feature or function of the Tagets Site in our sole discretion. You are not permitted to assign or otherwise transfer any rights granted to You under this Agreement, without Our prior written consent.
(c) Our Tagets Site Privacy Policy is incorporated herein by this reference. You agree that we may store and use personal information collected from You at this Tagets Site which may be accessed at: Privacy Policy. Please read it now.
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License to Store and Distribute Content.
You hereby grant to Us the irrevocable, worldwide, perpetual, non-exclusive, royalty-free, license to store, cache, reproduce and distribute, publicly display and publicly perform the Content, in whole or in part, and via any and all media or means now or later known or invented, for the purpose of promoting and downloading Your Content to end users to whom you sell or license your Content via the Tagets Site. We may, in its sole discretion, remove Content from the Tagets Site at any time with or without notice and without any liability or obligation to You.
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Fees
You will pay a fee for storing Content uploaded to the Tagets Site (“Storage Fees”) and, if applicable, a fee for bandwidth used by end users downloading Content from the Tagets Site (“Bandwidth Fees”). All fees are payable at our then-current rates set forth at www.tagets.com.
(a) Storage Fees are paid for the right to have space allocated to You on our computer servers, for storing your Content. They are payable in advance on an annual basis and they are not refunded to You if this Agreement terminates or for any other reason. You will pay the first annual Storage Fees payment at the time that You register to open an account (“Your Account”) to upload Your Content to this Tagets Site.
(b) Bandwidth Fees are payable if the amount of bandwidth used by end users when downloading your Content, exceeds the Free Bandwidth allocation amount granted to you when opening Your Account. Bandwidth Fees are billed in arrears and you agree to pay all Bandwidth Fees within 5 days after the end of each calendar month. We will bill your credit card on or before such date.
(c) By giving us your credit card information when registering for Your Account, you agree that we may charge all Storage Fees and Bandwidth Fees to the card that you supply during registration for Your Account. You agree to keep all your card information current and accurate and that you will pay us any amounts declined by Your card issue that are payable under this Agreement, using a different card or in the manner requested by us, within 5 days after receiving notice from Us that a particular charge was declined.
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Credits
You agree that We may include a notice in or in connection with the Content identifying Us as a source for the Content (for example, “Distributed with permission by The Aura Group”). Additionally, You acknowledge that We have the right, but not the obligation, to use Your name in and in connection with the promotion and operation of the Tagets Site.
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Your Representations & Warranties
You represent and warrant that:
(a) All Content (including each musical compositions and sound recording thereof) is originally created by You and the Content does not and will not violate any right of any third party, including any copyright or right of publicity; or to the extent not originally created by You, You have cleared all rights in the Content, including all rights in any musical compositions and sound recordings and We are not obligated to obtain the consent of anyone to use the Content as permitted under this Agreement;
(b) You are at least 18 years of age and have the right to enter into this Agreement, or enter into in on behalf of Your company, and to grant to Us each and every right in this Agreement;
(c) The Content does not violate any applicable law or regulation of any country, state or other governmental entity. We may be required to report to applicable authorities any Content that is illegal to transmit or display, including without limitation any Content that is obscene or harmful to children;
(d) You will accurately calculate, collect and remit to the appropriate taxing authorities, all taxes as may be required under the laws of any country, state, municipality or other taxing authority where end users reside who access and download your Content;
(e) You will comply with all laws, regulations and ordinances in connection with using this Tagets Site, including without limitation in your dealings with end users and concerning Your use of any and all personally identifiable information collected from end users of the Tagets Site (e.g., when a person performs a transaction to download a song); and
(f) You will also ensure that you use of any personally identifiable information does not and will not violate Our Privacy Policy.
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Renewal and Termination
(a) This Agreement automatically renews on the anniversary of the date that You open Your Account for a successive annual term. We will send an electronic notice to the email address that You provided to us when registering for Your Account, or to an updated address if supplied by You subsequently, notifying you of Your renewal date and the applicable Storage Fees and Bandwidth Fees payable by You during the renewal term .
(b) You agree that If You do not comply with the terms and conditions of this Agreement, we may terminate this Agreement immediately, with or without prior notice to You. You agree that We have no obligation to return Content to You. In the event of termination, Sections 1, 2, and 3-12 will survive.
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Your Indemnity Obligations
You agree to defend, indemnify and hold Us (and Our successors, licensees and assigns) free and harmless from any and all claims, liabilities, costs, losses, damages or expenses, including attorneys’ fees and expenses: (a) in connection with Your use of this Tagets Site; (b) any third party claim against Us of any nature whatsoever; or (c) any breach or alleged breach of any representation, warranty, or other promise made by You in this Agreement.
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Limitation on Your Damages
YOU WILL NOT BE ENTITLED TO ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES FOR ANY REASON, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DISCLOSURE OF CONFIDENTIAL OR OTHER INFORMATION OR LOSS OF PRIVACY (WHETHER BY FAILURE TO MEET ANY DUTY OF REASONABLE CARE, NEGLIGENCE OR NEGLIGENT MISREPRESENTATION) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY OTHER REMEDY FAILS.
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No Warranties for the Tagets Site
The Tagets Site is made available to You “AS IS”, “AS AVAILABLE” and “WITH ALL FAULTS.” We provide no warranties and disclaim all implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, noninfringement or that Your usage of the Tagets Site will be uninterrupted or free of computer viruses. We also disclaim any and all common law duties, including without limitation duties of reasonable care, workmanlike effort or lack of negligence. For the Tagets Site, the entire risk as to satisfactory quality, performance, accuracy, and effort is with You.
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Changes to This Agreement
This Tagets Site is like a place of business: every time a customer enters a store the customer is bound by the rules in effect on the date of the customer’s visit. Similarly, when You upload Content to this Tagets Site, You are bound by the version of this Agreement in effect on that date. The terms of this Agreement may change from time to time so please review them each time You upload Content.
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Notices
All notices must be sent to Us at: accounts@tagets.com, 111a N. Harbor Blvd. Second Floor, Fullerton, CA 92832. If you wish to cancel your Account, You may do so at any time by clicking on the “Cancel My Account” button or by sending a written notice to us at our postal address listed above. Your notice will not be deemed received by Us until we actually receive it at the address listed above or electronically through the “Cancel My Account” process.
Other Terms and Conditions
This Agreement constitutes the entire agreement between You and Us regarding its subject matter. We may assign this Agreement without restriction. You may not assign Your rights under this Agreement without Our prior written consent. Should any provision of this Agreement be held to be void or invalid, that fact will not affect any other provision, and the remainder of this Agreement will be construed to most closely give effect to the parties’ intentions. Failure by Us to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement is governed by California law. The parties consent to jurisdiction over them in any state or federal court in California, waive any claim or defense that such forum is not convenient and consent to service of process by any means authorized by California law. In any dispute between Us and You relating to this Tagets Site, the prevailing party will be entitled to attorneys’ fees, costs and expenses.
July 1, 2005