Guitarati - Terms of Use

Last updated : February 1, 2008

GUITARATI Terms of Use

The terms and conditions of use set forth herein apply to the Internet Web site located at http://www.Guitarati.com (the "Web Site") which is owned, operated, licensed, or controlled by Guitarati, LLC. ("Guitarati").

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THIS WEB SITE.

1. Acceptance
By using the Web Site or registering with the Web Site, you, the Web Site user ("User"), agree to be bound by the agreement formed by these terms and conditions of use (this "Agreement"). Guitarati reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time and without notice. Please check this Agreement periodically for changes. Continued use of the Web Site following the posting of changes to this Agreement will mean User has read and accepts such changes.
2. License & Access
Guitarati provides licensed Users with access to a web-based computer service for searching, organizing, downloading, streaming and purchasing music and music-related content (the "Service"). Provided that User is in compliance with this Agreement (and the Guitarati Content Provider Agreement if User is uploading content to the Web Site), Guitarati grants User a limited, revocable license to access and make personal use of the Web Site and the Service and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Guitarati. This license does not include any resale or commercial use of the Service, this Web Site or its contents; any derivative use of the Service, this Web Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. User shall not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Guitarati or our affiliates without express written consent. User shall not use any meta tags or any other "hidden text" utilizing Guitarati' name or trademarks without the express written consent of Guitarati. Any unauthorized use terminates the permission or license granted by Guitarati. User is granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Guitarati so long as the link does not portray Guitarati, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter. User shall not use any Guitarati logo or other proprietary graphic or trademark as part of the link without express written permission.

2.1 Accounts
Users may also register with Guitarati to create an account ("Account"). Users shall receive an Account upon completing the registration process. Users are responsible for maintaining the confidentiality of the password and Account, and are fully responsible for all activities that occur using such password or Account. User agrees to immediately notify the Web Site Administrator of any unauthorized use of a password or Account. User agrees to provide true, accurate, current and complete information, including verification that User is thirteen (13) years of age or older and to update Registration Information in order to keep such information current. User agrees to register with the correct account type (e.g. "ARTIST", "RECORD LABEL" or "AUDIENCE"). Guitarati reserves the right to terminate your Account, access to the Web Site and access to the Service if any Registration Information provided is false, inaccurate or incomplete.
2.2 Content
In this Agreement, all content, music, audio, video, audio-visual, text, graphics, artwork, images, photographs, animations, data, information, software, designs and other materials and legally protectible elements of the Website and our services, tangible or intangible, including, without limitation, the selection, sequence, "look and feel" and arrangement of items, as well as all copyrights, trademarks, service marks, brand and trade names which User may encounter or use shall individually and collectively, be referred to as "Content."
2.3 Access
The words "use" or "using" or "consumer" or "consuming" in this Agreement, means any time any individual, including User, directly or indirectly, with or without the aid of a machine, automated or other device, does or attempts to access, interact with, use, display, view, print or copy or use any portion, feature, function or aspect of the Web Site, transmit, receive or exchange data or communicate with the Web Site, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Web Site, for any purpose whatsoever. This Agreement does not cover User's rights or responsibilities with respect to third party (Provider) content or web sites or any links that may direct User's browser or connection to third party sites or pages.
2.4 System Requirements
Use of the Service, requires Internet access (fees may apply), software (fees may apply), and may require obtaining updates or upgrades from time to time. Therefore, User's ability to use the Service may be affected by these factors. User acknowledges and agrees that such system requirements are exclusively User's responsibility. The Service is not part of any other music or offering, and no purchase or the obtaining of any other music shall be construed to represent or guarantee you access to the Service. User acknowledges that use of the Web Site and Service may require the use of other hardware and software products and that such hardware and software is User's responsibility. Once a music file is purchased and received, it is User's responsibility and Guitarati shall not be liable to User in the event of any loss, destruction, or damage. User acknowledges and agrees that Internet streaming of music files is subject to transmission errors, poor internet connection and other technical or non-technical factors that may diminish the quality or prevent streaming altogether. User agrees to hold Guitarati harmless from and against any losses User may incur despite poor quality or non-transmission. In the event of poor quality or non-transmission, User's exclusive remedy is to discontinue use of the Service. Any fees paid for access are not refundable.
2.5 Deleted Content
Each time a User listens to a full-length version of a music file, a per-listen price is deducted from the User's account balance. When and if User decides to download or purchase that music file, the selling price of that music file for User shall be an amount equal to the indicated selling price less the total per-listen price deducted from the User's account balance. Guitarati cannot be held liable if, due to technical or non-technical errors, a per-listen price gets deducted from the User's account balance. In the event that a music file is deleted by the copyright owner, then it may not be downloadable from Guitarati even if it continues to show up in User's list of downloads. The link to download may be removed at any time for any reason. Guitarati reserves the right to inform User, or not inform User, of music files marked for deletion. After deletion, the music file shall not be available for download and User shall have no right to refund or exchange even if money has been deducted from the User's account balance for such music file.

3. Restrictions on Use
Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that are part of any Guitarati Web Site are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Guitarati. No material from any Guitarati Web Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except with express written consent of Guitarati.
1. 3.1 General Restrictions
  Users shall not commit any of the following acts through their use of this Web Site:
2. 3.2 Restrictions on use of Downloaded Music
  In the event that User downloads, copies or purchases any music files from the Web Site, User agrees to the following restrictions which may be revised by Guitarati in its sole and absolute discretion at any time:
4. Violations
In addition to any and all remedies at law or in equity, any intentional violation of the Terms shall give Guitarati the right to immediately suspend or cancel Services or Accounts without further liability. Furthermore, User specifically agrees that any intentional violation shall result in immediate liability for liquidated damages in the amount of Ten Thousand Dollars ($10,000.00) for breach of contract, in addition to any other remedies available to Guitarati at law or in equity.
5. Fees & Payment
Accessing this Web Site is currently free. In order to make purchases, User agrees to transfer money to User's Guitarati account using an accepted method as indicated on the Guitarati payments page before downloading or listening to full length songs. This also applies to any services offered in future other than listening or downloading music that may be pay-only. User agrees to pay for all music purchased through the Service and that Guitarati shall be permitted to deduct the amount indicated per stream or download from your Guitarati account. User understands and agrees that any monetary deductions made from User's account on Guitarati for use of the Content may not show up instantaneously. User may need to manually refresh a page to look at an account balance.
1. 5.1 If credit cards are used, there might be a delay in verification of the cards which involves other parties (or sharing the required information with them). Guitarati shall not be held liable or responsible for any delay arising out of circumstances or delays not within its control.
2. 5.2 Prices and availability of any music are subject to change at any time, in Guitarati's sole and absolute discretion. Guitarati may require Users to maintain a minimum account balance regardless of whether a User accesses any paid services. This minimum amount in your Guitarati account is subject to change at any time, in Guitarati's sole and absolute discretion.
3. 5.3 User acknowledges and agrees that computers, networks and the Internet are not free from data corruption, machine failures, etc. In the event of loss of data due to technical or non-technical reasons, you may be required to pay before downloading or listening to music for which you may have already paid. See Section 13.2 regarding Refunds. User agrees to hold GUITARATI harmless for loss of any such information in any way, financially or otherwise.
4. 5.4 Unless otherwise stated, all fees are quoted in U.S. Dollars. User is responsible for paying all fees and applicable taxes associated with User's use of the Web site in a timely manner with a valid payment method. If the payment method fails or an account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and attorney's fees.)
6. Buyer & Seller Transactions
Guitarati provides the Web Site as a passive conduit for the distribution of information between potential sellers and potential buyers.
7. Forums and Other Public Communication
"Forum" shall mean a discussion group, chat area, bulletin board, or e-mail function offered as part of the Web Site. User shall not upload to, distribute through, or otherwise publish through a Forum any content which is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise give rise to liability or violates any law.

The Forums shall be used only in a noncommercial manner. User shall not, without Guitarati' express written approval, distribute or otherwise publish any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. User specifically acknowledges that soliciting other guests of the Web Site to for any commercial product or service or other organizations is expressly prohibited. This prohibition shall not apply to promotional or advertising content provided by merchants with Accounts.

By uploading materials to any Forum or submitting any materials to Guitarati, User automatically grants (or warrants that the owner of such rights has expressly granted) Guitarati a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe. In addition, User warrant that all so-called "moral rights" in those materials have been waived.

8. Privacy
It is the policy of Guitarati to respect the privacy of all Web Site users. Therefore, in addition to the privacy of registration data, Guitarati shall not monitor, edit, or disclose the contents of a guest's e-mail or any other information unless required in the course of normal maintenance and operation of the Web Site and its systems or unless required to do so by law or in the good-faith belief that such action is necessary to: (1) comply with the law or comply with legal process served on Guitarati; (2) protect and defend the rights or property of Guitarati; or (3) act in an emergency to protect the personal safety of our users or the public. Users shall remain solely responsible for the content of their messages. Guitarati's Privacy Statement can be found here.
9. Indemnity
User shall indemnify, defend and hold Guitarati harmless from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defense costs and reasonable attorneys' fees arising from or related in any way to: a) any claim which, if proved, would breach any warranty, representation of User; b) User's breach of any term or condition of this Agreement, and c) any and all Third Party Claims arising out of any content submitted by User or transmitted through this Web Site by User.
10. Termination
This Agreement is effective as of the first date materials from the Web Site are accessed by User (the "Effective Date") and shall continue in effect until terminated by either party. User may cease using the Web Site at any time provided, however, all restrictions on use of Content, including music files downloaded from the Web Site, shall survive any termination. Guitarati may immediately terminate a User's Account or access to the Web Site if, in Guitarati' sole discretion, User fails to comply with any term or provision of this Agreement. Upon termination of this Agreement for User's violation of any term or condition of this Agreement, User's access and Account shall be terminated and User shall destroy all materials obtained from the Web Site and all copies thereof, whether made under the terms of this Agreement or otherwise.

Guitarati may, at its sole discretion, and at any time, discontinue providing the Web Site, or any part thereof, with or without notice. User agrees that any termination of its access to the Web Site under any provision of this Agreement may be effected without prior notice. Further, User agrees that Guitarati shall not be liable to User or to any third party for any termination of User's access to this Web Site.
11. Jurisdiction
Unless otherwise specified, the materials in this Web Site are presented solely for the purpose of promoting Content and other products available in the United States, its territories, possessions, and protectorates. The Web Site is controlled and operated by Guitarati from its offices within the State of Illinois, United States of America. Guitarati makes no representation that materials in this Web Site are appropriate or available for use in other locations. Those who choose to access this Web Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
12. Disclaimer
THE SERVICE, CONTENT AND MATERIALS IN THIS WEB SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GUITARATI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

GUITARATI DOES NOT WARRANT THAT THE SERVICE, CONTENT OR OTHER FUNCTIONS CONTAINED IN THIS WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, CONTENT OR THIS WEB SITE OR ANY OTHER GUITARATI WEB SITE OR THE SERVER(S) THAT MAKES THE GUITARATI.COM WEB SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GUITARATI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS WEB SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

GUITARATI IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT PUBLISHED ON THE WEB SITE OR IN CONNECTION WITH THE SERVICE, INCLUDING CONTENT PUBLISHED BY USERS OF THE WEB SITE OR THE SERVICE. CONTENT TYPES (INCLUDING GENRES, BIOGRAPHY AND THE LIKE) AND DESCRIPTIONS ARE PROVIDED FOR CONVENIENCE, AND YOU ACKNOWLEDGE AND AGREE THAT GUITARATI DOES NOT GUARANTEE THEIR ACCURACY. GUITARATI IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE WEB SITE. GUITARATI ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, THE WEB SITE OR THE SERVICES. GUITARATI IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT OR SOFTWARE, OR THE FAILURE OF EMAIL ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEB SITE, INCLUDING INJURY OR DAMAGE TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB SITE OR THE SERVICE.

13. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL GUITARATI BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS IN THIS WEB SITE, EVEN IF GUITARATI OR A GUITARATI AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER. IN NO EVENT SHALL GUITARATI' TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY USER TO GUITARATI, IF ANY, FOR ACCESSING THIS WEB SITE.
1. 13.1 Purchased Content
  Guitarati offers no refunds except those specifically set forth in this Agreement and upon compliance with all terms and conditions. Songs you download will show up in your account statistics details. Guitarati reserves the right to clear the list of downloaded songs for various purposes (e.g. expiration of the licenses period or to remove Content that is no longer available). Once the list is cleared, you may have to pay for the future downloads of that Content.
2. 13.2 Refunds
  Occasionally, technical problems may delay or prevent delivery of Content, or may cause the downloaded music to not play properly on one or many devices. YOUR SOLE AND EXCLUSIVE REMEDY with respect to a song that is not delivered within a reasonable period or that fails to play properly shall be either: (a) replacement of that song by subsequent download, or (b) a refund of the purchase price paid for that song, as determined by Guitarati in its sole and exclusive discretion, regardless of the reasons for such decision. You shall immediately notify Guitarati of any technical problem that you might encounter. Failure to notify Guitarati of any such technical problem within twenty four (24) hours of the date and time of the occurrence of the technical problem, shall forfeit any right to a refund or replacement.
3. 13.3 Album Art
  
  Content includes any album cover art that may be received embedded in the music or received alongside the purchase of songs. Guitarati shall have no liability with respect to album art that fails to display or display correctly (e.g. album cover art beside the song title in iTunes).
14. Links to Outside Web Sites and Services
To the extent that this Web Site contains links to outside services and resources, Guitarati does not control the availability and content of those outside services and resources. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular service or resource.
15. Copyrights and Copyright Agents
If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, please provide Guitarati' Copyright Agent the following information:
1. (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. (b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. (c) a description of where the material that you claim is infringing is located on the site;
4. (d) your address, telephone number, and email address;
5. (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. (f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
7. (g) Company's Agent for Notice of claims of copyright or other intellectual property infringement:
  
  Copyright Agent
  
  c/o David M. Adler, Esq. & Assoc. PC
  
  161 N. Clark Street, Suite 2550
  
  Chicago, IL 60601
  
  By phone: (866) 734-2568
  
  By email: copyright@ecommerceattorney.com
16. Miscellaneous
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. User agrees that any action at law or in equity arising out of or relating to this Agreement shall be litigated only in the state or federal courts located in the State of Illinois and User hereby consents and submits to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

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GUITARATI Terms of Use

1. Acceptance

2. License & Access

2.1 Accounts

2.2 Content

2.3 Access

2.4 System Requirements

2.5 Deleted Content

3. Restrictions on Use

3.1 General Restrictions

3.2 Restrictions on use of Downloaded Music

4. Violations

5. Fees & Payment

6. Buyer & Seller Transactions

7. Forums and Other Public Communication

8. Privacy

9. Indemnity

10. Termination

11. Jurisdiction

12. Disclaimer

13. Limitation of Liability

13.1 Purchased Content

13.2 Refunds

13.3 Album Art

14. Links to Outside Web Sites and Services

15. Copyrights and Copyright Agents

16. Miscellaneous