TERMS OF USE
PLEASE READ CAREFULLY BEFORE ACCESSING OR USING ANY PART OF THE SERVICES, BENEFITS AND PRODUCTS (“FAN SERVICES”) MADE AVAILABLE BY TOPSPIN MEDIA, INC. (“TOPSPIN” OR “WE”) THROUGH THIS WEBSITE AND THE OTHER TOPSPIN MANAGED DOMAINS (ON OR THROUGH THE TOPSPIN MANAGED DOMAINS (CURRENTLY TOPSPINMEDIA.COM AND TOPSPIN.NET)). BY VISITING THIS WEBSITE, OR USING THE SERVICES IN ANY MANNER, YOU THE INDIVIDUAL USER (“YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BECOME EXCLUSIVELY BOUND BY THESE TERMS (“FAN TERMS”). IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE FAN TERMS, YOU WILL NOT BE AUTHORIZED TO USE THE WEBSITE OR ANY SERVICES. OCCASIONALLY, IN ITS SOLE DISCRETION, BY POSTING A NOTICE ON THE FAN SERVICE OR BY SENDING YOU A NOTICE TOPSPIN MAY PUBLISH ADDITIONAL RULES AND POLICIES REGARDING THE FAN SERVICE, MODIFY OR DISCONTINUE PORTIONS OF THE FAN SERVICE FOR A PARTICULAR ARTIST OR ALL OF THE ARTISTS, OR CHANGE THESE FAN TERMS AND/OR ITS PRICE LIST. IT IS YOUR RESPONSIBILITY TO CHECK THE FAN TERMS PERIODICALLY FOR CHANGES. YOUR CONTINUED USE OF THE FAN SERVICE FOLLOWING THE POSTING OR NOTIFICATION OF ANY SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF THOSE CHANGES.
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What Are the Fan Services and these Fan Terms?
We are dedicated to helping bands and other artists that use our services (“Artist”) make their content (audio, video, images, etc.) available to their fans. Our relationship is primarily with those Artists, but since we may help process transactions and communications between You and the Artists, we need You to agree to these Fan Terms. Each Artist provides its own benefits, products and services through Topspin, so the benefits, products and services offered to You for one Artist are distinct from those offered by a different Artist. And, an Artist may provide its own terms and conditions regarding its products and services, but if there is any conflict between these Fan Terms and an Artist’s terms and conditions, these Fan Terms shall prevail.
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What Other Policies or Terms Apply to Your Use of the Fan Service?
Topspin’s current privacy policy is located at http://app.topspin.net/account/privacypolicy_public. Topspin’s Copyright Dispute Policy is located at http://app.topspin.net/account/copyright_dispute_policy. The Fan Service may permit You to link to other websites on the Internet, and other websites may contain links to the Fan Service. Those other websites are not under Topspin’s control, so You use them at Your own risk and Topspin is not responsible or liable for any aspect of such websites or any damage or loss alleged to be caused by or in connection with such websites.
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What Do You Have to Do to Register?
Some of the features of the Fan Service will require You to register with Topspin and select an appropriate password and screen name (“Topspin User ID”). Topspin may refuse to register and may cancel a Topspin User ID at any time. You are solely responsible for all activity that occurs on Your account and for maintaining the confidentiality of Your password. You must immediately notify Topspin of any security breach, such as unauthorized use of Your account.
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Are You Eligible to Use the Fan Services?
Topspin does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register. If You are under 13, please do not attempt to register for Fan Service or send any information about Yourself to Topspin. If we believe or determine that You are under 13, we will terminate Your right to access any part of this website for Fan Services that require registration. This provision and the right to access to the Fan Service is void where prohibited by law.
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Do I Have to Pay to Use the Fan Service?
You must pay for all items purchased by You using Fan Service, and for the features of the Fan Service that You select that require payment (as stated on the Fan Service). Artists may offer some products or services for free and others for a fee. Also, Artists may change the price of their products and other offerings at any time.
You must read and comply with the instructions and restrictions explicitly stated during the checkout process for any product You order through the Fan Service. The delivery times specified in the Topspin checkout process are estimates only. If You do not receive a product You ordered through the Fan Service, please contact Topspin customer support with Your request and proof of Your receipt. If approved by Topspin, You will be credited for the product that You did not receive. However, You understand and agree that Topspin is a platform that Artists use to sell their products and services and to improve communications with their fans. Topspin will work with the applicable Artist who sold You such product to try to remedy the situation, however, the applicable Artist (not Topspin) is solely responsible for fulfilling such orders.
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What Rules and Restrictions Govern Your Use of the Fan Service?
You shall not (and shall not authorize any third party to) take any action or use, submit or distribute any text, media, materials, User Submissions (as defined below), or other content (collectively “Content”) on or through the Fan Service that infringes any third-party intellectual property or other right; is unlawful, threatening, harassing, defamatory, obscene or offensive; constitutes unauthorized or unsolicited advertising, crawling, spidering, or spamming; or interferes with or manipulates the Fan Service or Topspin’s or any Artist’s billing process, security, infrastructure, access restrictions, price or offering.
You shall not: (i) decompile, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Fan Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Fan Service, or (iii) use or otherwise transfer any of the rights that You receive for the benefit of a third party. You shall abide by all applicable local, state, national and international laws and regulations, and all notices and restrictions contained in any content accessed through the Fan Service. You may, to the extent the Fan Service expressly authorizes You to do so, download or copy the content displayed on the Fan Service for download, for personal use only, provided that You maintain all notices contained in such content. Copying or storing of any content for other than personal, noncommercial use is expressly prohibited.
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What About Content and Information You Post or Upload to the Fan Service – What Rights Do You Grant to Topspin and Other Users?
Your Content - The Fan Service may provide You with the ability to submit and distribute Content to Artists, Your friends, or otherwise on the Fan Service (“User Submissions”). In connection with Your User Submissions, You represent, warrant and agree (and You will demonstrate to Topspin’s full satisfaction upon its request) that: (i) You own or have all licenses and rights to use and to authorize Topspin to enable, use, display, and distribute the User Submissions through the Fan Service; (ii) You have the written consent of each individual person in the User Submission to use his or her name and likeness in connection with that User Submissions and through the Fan Service; and (iii) Your User Submission does not violate the privacy, publicity, intellectual property, or other rights of any person. Please be aware that Topspin may remove any User Submission at any time for any reason.
Other Content - You understand that Topspin does not endorse and has no control over any User Submission; that Topspin is not liable for any errors or omissions in any User Submission and has no obligation to monitor the Fan Service, Content, or User Submissions; and that Topspin cannot guarantee the identity of any other users with whom You may interact or the authenticity of any data which users may provide about themselves. You acknowledge that You use all content accessed by You through the Fan Service at Your own risk. Topspin does not warrant, guarantee, or offer any support for the product(s) purchased or licensed through the Fan Service, and is not a party to those transactions.
Content Ownership and License - Topspin will not have any ownership rights in Your User Submission; however, Topspin needs the following license so that it can perform the Fan Service for You. You hereby grant to Topspin for so long as You are using the Fan Service, a worldwide, nonexclusive, royalty-free right to use, reproduce, display, perform and distribute the User Submissions so that Topspin may perform the Fan Service for You. You also hereby grant each user of the Fan Service and Artist all rights necessary to access Your User Submissions through the Fan Service and to fulfill transactions and services requested by You. Certain features of the Fan Service may contain additional provisions which govern ownership and licenses with respect to applicable features.
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How Can You or Topspin Terminate the Agreement?
You may terminate Your account by following the instructions on the Fan Service. Topspin may terminate Your access to all or any part of the Fan Service at any time for any reason. If You have purchased a package or a subscription from an Artist through the Fan Service that extends beyond the date of such termination, that Artist (not Topspin) is solely responsible for fulfilling such obligations to You after such termination. Topspin will reasonably cooperate with such Artists to allow them to fulfill their obligations to You. Any fees paid hereunder are non-refundable. All provisions of the Fan Terms which by their nature should survive termination shall survive termination (e.g., ownership provisions, warranty disclaimers, indemnities and limitations of liability).
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What Other Legal Terms Apply to the Fan Services?
Warranty Disclaimer - The Fan Service and Content is provided “As Is” and “As Available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, or that the Fan Service will be uninterrupted or error-free. Your use of the Fan Service is solely at Your own risk. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to You.
Indemnification - You shall indemnify and hold harmless Topspin, its affiliates and their employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, expenses, and reasonable attorneys’ fees, that arise from or relate to Your (i) User Submissions, (ii) violation of third party intellectual property or other rights, (iii) violation of applicable laws, rules or regulations, (iv) Your use of the Fan Service. Topspin shall have the option to assume the exclusive defense and control of any action to which it is a party and You shall assist Topspin in asserting any available defenses.
Limitation of Liability - Topspin is not responsible for any users’ actions or User Submissions. In no event shall Topspin, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Fan Service or any other subject matter of these Fan Terms (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, consequential damages of any kind whatsoever, or substitute goods or services, (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), (iii) for any direct damages in excess of (in the aggregate) one hundred U.S. dollars ($100.00), or (iv) for any matter beyond its reasonable control. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to You.
Dispute Resolution - The Fan Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any dispute arising from or relating to the subject matter of these Fan Terms shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one JAMS arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Judgment upon the award so rendered may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, each party may seek injunctive or other equitable relief in any court of competent jurisdiction at any time.
Other Terms - These Fan Terms are the entire agreement between You and Topspin with respect to the Fan Service, and supersede all prior or contemporaneous communications and proposals between You and Topspin with respect to the Fan Service. If any provision of the Fan Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Fan Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. The Fan Terms are personal to You, and are not assignable, transferable or sublicensable by You except with Topspin’s prior written consent. Topspin may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of the Fan Terms and neither party has any authority of any kind to bind the other in any respect. Except as otherwise provided herein, all notices will be deemed to have been duly given, when received.
Effective Date: July 2008
Topspin Media, Inc.
1538 20th Street, 1st Floor
Santa Monica, CA 90404
http://support.topspinmedia.com