Terms and Conditions
READ CAREFULLY. These Terms and Conditions of Use Agreement (the "Terms of Use" or "Use Agreement") apply to use of the CdPulse.com website located at http://cdpulse.com (the"Site"). The Site is the property of CdPulse.com Before you make any purchases, you must first establish a customer account ("My Account"). These Terms of Use will govern your customer account. BY CLICKING "I HAVE READ,UNDERSTAND AND AGREE TO THE TERMS OF USE," YOU AGREE TO THESE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT CLICK ON THE BUTTON AND DO NOT USE THE SITE.
CdPulse.com reserves the right, at its sole discretion, to change, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use each time before using the Site. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, CdPulse.com grants you ("End User") a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site. If there is conflict between these Terms of Use and the terms posted for a specific service, feature or transaction offered on the Site, the latter terms shall control regarding that specific service, feature or transaction.
All music (downloaded or samples), software, text, images,graphics, user interfaces, videos, photographs, trademarks, logos, and artwork(collectively, "Content"), including but not limited to the design, selection,arrangement, and coordination of such Content on the Site is owned or licensed by or to Cdpulse.com, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws. Except as expressly provided in these Terms of Use, no part of the Site and no Content may be reproduced, recorded, broadcast, distributed, uploaded, posted, altered to make new works, performed, digitized, or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without CdPulse.com's prior express written consent.
All music (downloaded or samples), software, text, images,graphics, user interfaces, videos, photographs, trademarks, logos, and artwork(collectively, "Content"), including but not limited to the design, selection,arrangement, and coordination of such Content on the Site is owned or licensed by or to Cdpulse.com, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws. Except as expressly provided in these Terms of Use, no part of the Site and no Content may be reproduced, recorded, broadcast, distributed, uploaded, posted, altered to make new works, performed, digitized, or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without CdPulse.com?s prior express written consent.
You have a nontransferable, nonexclusive, nonsublicensable license to only use the Digital Downloads for personal use as specified in the above Content Use Rules. You may not play and then redigitize any Works, or upload those Works to the Internet. You may not create any "derivative works"by altering any of the Content. You may not use the Works in conjunction with any other third-party content (e.g., to provide sound for a film). You may not exploit any such Content or for commercial purposes (including the sale of bundled Digital Downloads transferred onto Approved Electronic Devices). You may not transfer or distribute Digital Downloads except as stated in the Content Use Rules. No other uses are permitted except as expressly stated as an authorized use under the Content Use Rules. You further agree to indemnify, defend and hold harmless CdPulse.com for your failure to comply with this section.
The services offered on the Site require you to first open an account. You are responsible for maintaining the confidentiality of your My Account information, including your password, and for all activity that occurs under your account. You agree to notify CdPulse.com immediately of any unauthorized use of your account or password, or any other breach of security. You may beheld liable for losses incurred by CdPulse.com or any other user of the Site due to someone else using your password or customer account. You may not use anyone else's password or customer account at any time.
You may not attempt to gain unauthorized access to the Site. Should you attempt to do so, assist others in making such attempts, or distributing instructions, software or tools for that purpose, then your customer My Account will be terminated.
You agree to provide us with accurate, current and complete information about yourself and your billing information as prompted by the registration process. You may update any of your My Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated credit card, by clicking on the MyAccount button and selecting the appropriate link.
You must disclose certain personal information to use our Site, register, and make purchases. As a condition of registering with our Site or making any purchases of Digital Downloads or any other products, you represent that you have first read our Privacy Policy and consent to our collection, use and disclosure of your personal information and non-personal information. To make a purchase, you must at least disclose to us all of the following: (i)your name, (ii) mailing address including zip code or equivalent, (iii)transaction data including credit card number and titles of albums or songs purchased. Our Privacy Policy's terms and conditions will change from time to time, and as a condition of browsing the Site, using any features or making any purchase, you agree that you will first review our Privacy Policy prior to making any initial or subsequent purchases.
By establishing a My Account with us, and each time you make a purchase through our Site, you grant permission for CdPulse.com to contact you at your e-mail address.
You or CdPulse.com may terminate these Terms of Use for any reason at any time. You also agree that CdPulse.com may, in its sole discretion and without prior notice to you, terminate for cause your access to the Site, which includes (but is not limited to): (1) attempts to gain unauthorized access to the Site or assistance to others attempting to do so, (2) overcoming software security features limiting use of or protecting Digital Downloads, (3) discontinuance or material modification of the Site or any service offered on or through the Site, (4) violations of the Terms of Use, (5) failure to pay for purchases, (6) copyright infringement, (7) unexpected operational difficulties,or (8) requests by law enforcement or other government agencies.
You agree that CdPulse.com will not be liable to you or to any third party for termination of your access to the Site. The following provisions of these Terms of Use shall survive termination, whether for convenience or cause:"Content," "Content Use Rules," "Prohibited Uses of Digital Downloads,""Consent to Collection, Use and Disclosure of Your Personal Information,""Consent to Our Communication With You By E-mail," "Disclaimer of Warranties,"and "Limitation of Liability."
THE WEBSITE, MUSIC SAMPLES, "DIGITAL DOWNLOADS," SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED "AS IS." CdPulse.com EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE CDPULSE.COM WEBSITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION.
YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE USE OF THE SITE AND/OR DOWNLOADING OF MUSIC FILES OR THEIR USE. IN NO EVENT SHALL CDPULSE.COM OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY DIGITAL DOWNLOADS, WITH THE DELAY OR INABILITY TO USE THE CdPulse.com SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE MUSIC OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE CDPULSE.COM SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF CdPulse.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT ANY LIMITATION OF LIABILITY SHALL FAIL OF ITS ESSENTIAL PURPOSE, THE MAXIMUM LIABILITY THAT CDPULSE.COM SHALL HAVE IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO CDPULSE.COM BY END USER.
Pursuant to 17 U.S.C. § 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), CDPULSE.com. ("CdPulse.com") will terminate the account of any customer, or vendor who uses his or her privileges to unlawfully transmit copyrighted material without a license, valid defense or fair use privilege to do so. After proper notification by the copyright holder or its agent to the CdPulse.com and later confirmation through court order or an admission by the customer that an account has been an instrument of unlawful infringement, CdPulse.com will terminate the infringing customer's account. CdPulse.com may also in its sole discretion decide to terminate a customer's account privileges prior to that time if it has good belief that infringement has in fact occurred. In addition, pursuant to 17 U.S.C. § 512(c), CdPulse.com has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. CdPulse.com respects the intellectual property of others and we ask other to do the same. If you believe that your copyright has been infringed through the CdPulse.com website, please contact us.
Any written notice describing the infringing activity must include the following information: (1) An electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive that is allegedly infringed; (2). A description of the allegedly infringing work or material; (3)A description of where the allegedly infringing material is located on the site; (4) Information reasonably sufficient to allow us to contact you, such as your address, telephone number and e-mail address; (5) A statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright or other proprietary right owner, its agent, or the law; and (6). A statement by you that the above information and notification is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner whose exclusive right is allegedly infringed.
You agree that all matters relating to your access to or use of or purchases made from the Site, including all disputes arising out of these Terms of Use, will be governed by the laws of the United States and by the laws of the State of Florida without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Tampa Bay, Florida. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises.
Last modified: November 1, 2007
CdPulse.com SUBSCRIPTION SERVICE TERMS OF USE
THIS CDPULSE.com SUBSCRIPTION AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU", "YOUR", OR"YOURSELF"), AS THE END USER, AND CDPULSE.COM ("OUR,""US," "WE" OR "CDPULSE.com "), WHICH GOVERNS YOUR USE OF THE OUR INTERNET-BASED MUSIC SUBSCRIPTION SERVICE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, "THE SERVICE"). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACESSING THE SERVICE, OR ANYCOMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME APARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS 18 YEARS OF AGE OR OLDER. IF YOU ARE NOT YET 18 YEARS OLD, PLEASE DISCONTINUE USING THE SERVICE IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
When we refer to the "use" of the Services in this Agreement, we mean any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Services. These terms and conditions, together with the other terms of use applicable to other CdPulse.com owned or controlled web sites and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement, including, without limitation our Privacy Policy constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.
1. ENROLLMENT IN THE SERVICE
CdPulse.com currently provides the Service for sampling and downloading music in the MP3 format. The Service consists of multiple subscription plans whereby, for a monthly fee and subject to certain limitations as described herein, you are granted specified download rights to our catalog of MP3 music files. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to the music files. You must be at least 18 years of age to enroll. To begin the enrollment process, you must complete the Service registration process located on our website at https://www.CdPulse.com /register?ld= ("CdPulse.com ) or such other registration process as we may provide from time to time.
2. MODIFICATION
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We will notify you of any such changes via email or by posting a change notice on our site. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes be effective upon the date we notify you of the same ("effective date"). Your continued use of the Service following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this agreement 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. If any new products or services become available, they will be considered a part of the Service and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.
3. YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being the "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service, as applicable. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as"IDs"). You agree that you will not allow another person to use your IDs to access and use the Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result ofyou failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Services using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
4. CDPULSE.com PRIVACY POLICY
CdPulse.com takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collectiona nd use of your personally identifiable information in connection with your use of the Service. Our Privacy Policy is set forth at http://CdPulse.com/privacy_policy.
5. TECHNOLOGICAL AND USE LIMITATIONS
5.1: CdPulse.com will make reasonable efforts to keep the CdPulse.com Site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of CdPulse.com may, from time to time, result in temporary service interruptions. CdPulse.com also reserves the right at any time and fromtime to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree CdPulse.com shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2: By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.
5.3: Because the Service is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of files CdPulse.com reserves the right to immediately and permanently terminate your access to the Service if CdPulse.com believes that you are violating such limitation.
5.4: You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a)is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally,ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs.You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party's prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable toyour use of the Service.
5.5: You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a)accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user,processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability.We have the right to investigate occurrences, which may involve such violations and may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
6. TERM, FEES AND PAYMENTS
6.1: By registering for the Service, you agree to pay the fees designated for the Service level you select in accordance with our Pricing and Payment Terms, which can be found below Click here. Subject to your right to terminate the Service prior to the expiration of a Trial Period if any -- as described in the following section, you agree to pay the applicable amounts for the minimum period specified therein.
6.2 Subject to the terms in Section 6.7 below, your subscription will continue automatically at the fee rate applicable to the Service, which youhave selected unless terminated by CdPulse.com or until you notify CdPulse.com of your decision to cancel your subscription to the Service. Upon the expiration of the initial period if any your subscription will automatically renew on a month-to-month basis at the same monthly rate, as applicable, unless you elect to terminate the Service or enroll in another version of the Service.
6.3: Each month during the term of this Agreement following the expiration of any Trial Period, the fees for use of the Service will be billed automatically to the credit card you designated during the Service registration process or subsequently provided to CdPulse.com. You agree to pay or have paid all fees and charges incurred in connection with your IDs for the Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Service using your IDs without your authorization, you must contact CdPulse.com immediately at marketing@cdpulse.com.
6.4: Payment must be made by a major credit card accepted by CdPulse.com (currently VISA, MasterCard, American Express and Discover), or any other methods of payment as CdPulse.com may accept from time to time. Your credit card will be billed monthly in advance commencing on your initial signup date and continuing thereafter on a monthly basis on the thirtieth (30th) day following the expiration of the preceding billing period (Billing Date) If CdPulse.com does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by CdPulse.com. Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT CdPulse.com, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
6.5: If CdPulse.com does not receive the full amount of your Service account balance within thirty (30) days of the Billing Date, a late payment charge of one and one-half percent (1.5%) per month (or the highest amount allowed by law,whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify CdPulse.com of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release CdPulse.com from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to CdPulse.com within sixty (60)days of its first appearance on an invoice or credit card statement.
6.6: You agree to pay CdPulse.com all reasonable attorney's fees and costs incurred by CdPulse.com to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Service account.
6.7: The fees, charges and payments hereunder do not include and you are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
6.8: CdPulse.com RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY CDPULSE.com, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.cdpulse.com/subscriptions CdPulse.com MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. If any such change is unacceptable to you, you may cancel your subscription to the Service, as provided in Section 7 below. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
7. TERMINATION
7.1: We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in anyway, and it will not limit any other rights or remedies which are available tous. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effectivedate of any such termination, your right to use the Service shall immediately cease.
7.2: Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued forthe billing cycle in which this Agreement is terminated.
8. INTELLECTUAL PROPERTY RIGHTS
8.1: Only you may access the Service using your IDs, unless otherwise agreed to in writing by CDPulse. The content available through the Service is the property of CdPulse.com or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of CdPulse.com. You agree to indemnify and hold harmless CdPulse.com for your failure to comply with this Section 8.1.
8.2: You acknowledge that CdPulse.com retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or its contents, and CdPulse.com reserves all rights not expressly granted hereunder. You shall promptly notify CdPulse.com in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or CdPulse.com's patent, copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
9. DISCLAIMER OF WARRANTIES
You expressly agree that use of andaccess to the service is at your sole risk. the service is provided on an"as is" and an "as available" basis. we do not make, and hereby disclaim, any representations or warranties regarding the service, the cdpulse.com site and the products and services offered through the cdpulse.com site or any portion thereof, express, implied or statutory, including (without limitation) implied warranties of merchantability, fitness for a particular purpose, title, noninfringement of third party rights, or any warranties arising by course of dealing or custom of trade. We make no representation or warranty that any material, content, products or services displayed on or offered through the service are accurate, complete, appropriate, reliable, or timely. We also make no representations or warranties that the service will meet your requirements and/or your access to and use of the service will be uninterrupted or error-free, free of viruses, malicious code, or other harmful components, or otherwise secure. Some jurisdictions do not allow the exclusion of certain warranties. accordingly, some of the above exclusions may not apply to you.
10. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, neither cdpulse.com, its licensors, suppliers, partners, affiliates or third-party service providers shall be liable to you or any third party for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, or any other form of damages in any manner arising out of or in connection with this agreement or your use of the service, regardless of the form of action or the basis of the claim or whether or not cdpulse.com has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. accordingly, some of the above limitations and exclusions may not apply to you.
11. INDEMNITY
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys' fees, expert fees' and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
12. MISCELLANEOUS
This agreement is governed by the laws of the State of Florida, U.S.A., without regard to its conflicts of law provisions;and you hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in Hillsborough County, Tampa Bay, Florida, U.S.A with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates). Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 11. You shall not use the Service in any manner contrary to local, state or federal law. Cdpulse.com expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice for your failure to comply with any such local, state or federal law. Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement. You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void. This Agreement, together with our Privacy Policy and any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, 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). To the extent it may be applicable, you agree with us, to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Broadcasting Provisions
Effective September 21, 2008
Thank you for using the cdpulse.com website (the "Website") and the membership, community, subscription and pay-per-view services offered by or through the Website (the "Services").
The terms of service contained in this document (these "Terms of Service") apply to and govern your use of the Services and Website. Before using the Services and Website, please read these Terms of Use in their entirety as well as all other documents incorporated by reference into these Terms of Use. As used herein, any references to "your" or "you" shall include you and any authorized user of your account with the Services and any references to "our", "we" or "us" shall mean cdpulse.com.
YOUR USE OF THE WEBSITE OR SERVICE INDICATES YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, YOU MAY NOT USE THIS WEBSITE OR THE SERVICES. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO MODIFY, ALTER OR OTHERWISE UPDATE THESE TERMS OF SERVICE AT ANY TIME WITHOUT PRIOR NOTICE. YOUR CONTINUED USE OF THIS WEBSITE FOLLOWING ANY SUCH MODIFICATION WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH MODIFICATIONS.
1. PERSONS UNDER THE AGE OF 18.
Some materials, including graphic files, audio files, video files, movies, text, hyperlinks, interlinks, search engines, and other content that are provided through the Services and Website (the "Content") are intended only for those persons over the age of 18 or ages 13 to 18 who have received consent from their parent or guardian. As such, in order to register for the Services, you represent that you are at least 18 years of age or older, or that you are between the ages of 13 and 18 and have received consent from your parent or guardian. If you are under the age of 13, please do not register for the Services or use the Website.
2. ACCEPTANCE OF TERMS AND REGISTRATION.
a. Complying with Terms. In consideration for using the Services and Website, you agree to comply with these Terms of Service. In addition, you further agree to (i) make timely and satisfactory payment for the specific Services purchased by you; (ii) provide us with your valid e-mail address and accurate, complete and true information about yourself as required (your "Registration Information") in order to create an account for use of the Services and restricted access portions of the Website (your "Account"); and (iii) maintain and update, as applicable, your Registration Information with current and complete information. If you violate these Terms of Service, or provide inaccurate, false, or non-current Registration Information or credit card information you may, at our sole discretion, have your Account suspended or terminated, and you may be permanently banned from using the Services and Website. Furthermore, we may, in our sole discretion, pursue any available rights or remedies at law or in equity for such a violation of these Terms of Service, or for submitting inaccurate credit card information.
b. Password Security. When creating an Account you may be asked to submit a valid email address and a password. You will be responsible for maintaining the confidentiality of your password. You are responsible for all activity on the Services and Website accessed using your Account, including the activity of those individuals to whom you have provided your email address and password. You agree that you will (i) immediately notify us by one of the means specified in Section 17(e) of any unauthorized use of your email address or password and (ii) ensure that you properly exit the Services at the completion of your session. We shall not be liable for any loss or damage arising from your Account or your failure to comply with these requirements.
c. Privacy Policy. Our use and handling of your Registration Information is governed by the Privacy Policy available separately on this Website. By registering for an Account and providing with your Registration Information to us, you agree that we can use your Registration Information as specified by the Privacy Policy.
Click here to view the Privacy Policy.
3. SUBSCRIPTIONS.
a. Term.
Subscription plans continue until cancelled and are cancelable at any time.
b. Conditions.
There is no charge for a cdpulse.com "Backstage Pass" membership, or to view any multimedia or text content via cdpulse.com. We reserve the right to cancel a subscription at any time. Pay per view services purchased via the cdpulse.com Store are non-refundable and non-cancelable.
Venue Accounts
c. Fees.
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$99.95 Free 40 Gigabytes "per viewer" .95 Cents |
How we pay your profits
Note: The monthly subscription fee includes 40 Gigabytes of bandwidth. 40 Gigabytes will supply an average of 200 viewers for 1 hour performances.
Any additional bandwidth usage above 40 gigabytes will be deducted from the ticket sales income in the amount of .95 cents per viewer. Bank card fees and offsets are deducted from gross sales. Profits are electronic transferred every week. If venues wish to be paid profits by check, they will be issued the first week of every month.
Income Examples
d. Income.
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$590.00 Gross Income $5,900.00 $11,850.00 $19,800.00 |
Bandwidth Costs, Shopping Cart Administration, and reporting expense remains constant at .95 cents per viewer as a deduction from gross income.
Disclaimer: This assumption analysis of gross monthly income is for example only and not intended to misrepresent actual Venue results. Profits realized are solely based on the marketing, advertising, and popularity of entertainers hired by venues of which we claim no control of the outcome. Incomes and profits will be higher or lower based upon the efforts of each venue location.
4. LICENSE TO CONTENT.
a. Content License.
We grant you a non-exclusive, non-transferable, limited right and license to access, use and privately display the Content, Services and Website for your personal use only, by way of one (1) computer at a time that is connected to the Services and Website over the internet, provided that you comply fully with these Terms of Service.
b. Restrictions.
You may not: (i) frame or link to the Services or the Website except as expressly permitted in writing by us; (ii) permit unauthorized individuals to use the Services and Website; (iii) modify, translate, reverse engineer, de-compile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Content or any portion thereof; (iv) copy the Content or any portion thereof, except as specifically provided for herein; (v) sell, rent, lease, transfer, distribute, broadcast, display or otherwise assign any rights to the Content to any third party; (vi) remove any proprietary notices or labels on the Content and Website; (vii) use the Services or Website in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (viii) use the Services, Website or Content for any commercial or illegal purpose; (ix) use the Services or Website to invade the privacy of, or obtain personal information about, any account holder or user of the Services or Website, or to obtain a list of account holders or users of the Services or Website; (x) copy, modify, erase or damage any information contained on the Services, or any third party servers; (xi) use the Services or Website to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; (xii) use any data mining, robots, or similar data gathering and or extraction tools in connection with the Services and Website; (xiii) use the Services or Website to post or transmit any unsolicited advertising or promotional materials; (xiv) access or use any password protected, secure or non-public areas of the Services or Website except as specifically authorized in writing by cdpulse.com (unauthorized individuals attempting to access these areas of the Services or Website may be subject to prosecution); (xv) impersonate or misrepresent your affiliation with any person or entity; (xvi) interfere or attempt to interfere with the operation of the Services or Website in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs; or (xvii) attempt to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into the software (including without limitation the tools that delete downloaded content for which the license rights have expired).
5. MINIMUM SPECIFICATIONS.
The Services and Website will operate only on those hardware and software platforms specified by us for the Services and Website. It is your responsibility to ensure that you have the appropriate software, hardware and Internet connection to operate the Services and Website. We reserve the right to cease supporting any hardware or software platform at any time, with or without notice.
6. MODIFICATION OF SERVICES AND WEBSITES.
We reserve the right, at our sole discretion, to update, change, modify, add or remove any portion of the Services, Website or these Terms of Service, in whole or in part, at any time. Changes to these Terms of Service will be effective when posted. You agree to review these Terms of Service periodically to be aware of any changes. By continuing to use the Services or Website after any changes, you agree to be bound by subsequent revisions to these Terms of Service.
7. TITLE.
We are the exclusive owner and proprietor of the Services and Website. The Content is owned by us and/or our licensors, broadcasters, advertisers and content providers and is protected by applicable domestic and international copyright laws.
8. TERMINATION
a. Termination for Breach. These Terms of Service (and therefore any license granted herein) shall terminate automatically and immediately if you fail to comply with any of the limitations or obligations described in these Terms of Service. No notice shall be required from us to effectuate such termination.
b. Termination for Any Reason. In addition, we reserve the right to terminate these Terms of Service and discontinue access to the Services or Website at any time for any reason upon posting notice thereof on the Website.
9. UNSOLICITED SUBMISSIONS.
We are pleased to hear from our customers and welcome your comments regarding our products and services, including our online services. Unfortunately, however, our policy does not allow us to accept or consider creative ideas, suggestions, or materials other than those we have specifically requested. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by our professional staff might seem to others to be similar to their own creative work. Accordingly, we must regretfully ask that you do not send us any original creative materials such as message, sermon, stories or character ideas, screenplays, or original artwork. While we do value your feedback on our services and products, we request that you be specific in your comments on those services and products and not submit any creative ideas, suggestions, or materials. If, at our request, you send certain specific submissions or, despite our request that you not send us any creative materials you still send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidentiality on the part of us, and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature, in perpetuity, throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
10. NON-UNITED STATES RESIDENTS.
We make no representation that the Services, Website and any content or products offered on the Services and Website and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than in the United States of America.
11. LINKS FROM THE WEBSITES.
The Services and Website contain links through advertising and otherwise, to various third party web sites and other resources (collectively the "Linked Entities"). These Linked Entities are not under our and we are not responsible or liable for the content, communications or materials of any Linked Entities. We are providing these links to you as a convenience only. The inclusion of any link does not imply endorsement by us of the Linked Entity or any association with its operators. You are responsible for adhering to the applicable terms of service for any Linked Entity. You are solely responsible and liable for any interactions you may have with such entities, their sponsors and other third-parties.
12. COPYRIGHT NOTICE.
You may not use the Services or Website to help you infringe the copyrights of any third party. You agree that you shall only use the Services and Website in a manner that violates no third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Services and Website, including, but not limited to, applicable restrictions concerning copyrights and other intellectual property rights. If you believe that any content appearing on the Services or Website has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
(a) Your name, address, telephone number, and email address;
(b) A description of the copyrighted work that you claim has been infringed;
(c) The exact URL or a description of where the alleged infringing material is located;
(d) 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;
(e) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
(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 owner or authorized to act on the copyright owner's behalf.
cdpulse.com
Attention: Copyright Agent
Legal Department
cdpulse.tv
140 Island Way #290
Clearwater, Florida 33767-2216 Office: 1-727-470-9971
E-Mail: administrator@cdpulse.com
We seek to preserve any and all exemptions from liability that may be available under the copyright law, but does not necessarily stipulate that it is a service provider as defined in 17 USC section 512c or elsewhere in the law.
13. INDEMNITY.
You shall, at your own expense, defend us, our suppliers, advertisers, broadcasters, content providers and/or affiliates against any third party claim, suit or proceeding ("Third Party Claim") brought against us, our suppliers, advertisers, broadcasters, content providers and/or affiliates which arises out of, results from or is related to any breach by you of these Terms of Service. You shall indemnify and hold us, our suppliers and our affiliates harmless from any damages (including reasonable attorney's fees) resulting from a Third Party Claim.
14. NO WARRANTY.
You acknowledge that the Services and Website are provided "AS IS" and "WITH ALL FAULTS." We, our suppliers, advertisers, broadcasters, content providers and affiliates make no warranty as to the Services, Website and/or their availability and the entire risk (except as provided in Section 15 below) as to the quality and performance of the Services and Website is with you. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, OUR SUPPLIERS, ADVERTISERS, BROADCASTERS, CONTENT PROVIDERS AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. REMEDIES.
If a defect in the Services or Website prevent you from viewing certain Content that you have paid for, either on a pay-per-view or subscription basis, we will, at our option, either (a) make the Content available for viewing at a later date or (b) refund to you a pro-rated portion of the fees you paid to view such Content. To the maximum extent permitted under applicable law, such repair, replacement or refund is our, our suppliers', advertisers', broadcasters', content providers' and our affiliates' entire liability and your exclusive remedy, in contract, tort or otherwise, relating to the Services and Website.
16. EXCLUSION OF DAMAGES; LIMITATION ON LIABILITY.
IN NO EVENT SHALL WE, OUR SUPPLIERS, ADVERTISERS, BRODCASTERS, CONTENT PROVIDERS OR AFFILIATES BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA OR DAMAGES TO YOUR HARDWARE OR SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF US, OUR SUPPLIERS OR OUR AFFILIATES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
17. GENERAL.
a. No Assignment.
The rights granted to you by this Agreement are personal to you and you may not assign or otherwise transfer in any way any of the rights and obligations arising out of these Terms of Service. We may assign these Terms of Service in whole or in part at any time and without notice.
b. Governing Law.
These Terms of Service shall be governed by the laws of the State of Georgia, without regard to principles of conflicts of laws. You agree that the federal and state courts of Tallahassee, Florida are the sole venues for any disputes related to or arising form these Terms of Service and agree to the jurisdiction of such courts.
c. Severability.
If any provision of these Terms of Service is determined by any court of competent jurisdiction to be unenforceable, such provision shall be interpreted to have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of these Terms of Service shall not affect the other provisions hereof, which shall continue in full force and effect.
d. Intellectual Property Notice.
The Content and the Website are Copyright © cdpulse.com and/or its broadcasters and content providers as applicable. All Rights Reserved. Other products and company names mentioned on the Services and the Website may be trademarks of their respective owners. The Website, including without limitation any video, graphics, text or other content displayed on or delivered or broadcast through the Website, may not be copied, reproduced, re-distributed or modified, in whole or in part, without the express, written permission of cdpulse.com. To obtain such permission, please contact cdpulse.com at legal@cdpulse.com.
e. Customer Contacts.
If you have any questions regarding these Terms of Service, the Services, or the Website, or if you would like to contact us for any other reason, send an email to support@cdpulse.com.
f. Injunctive Relief.
Each party agrees that a breach of the license rights granted hereunder and/or the restrictions thereon, or a breach of the confidentiality provisions hereof, may result in irreparable harm and significant injury to the other which may be difficult to ascertain. Accordingly, each party agrees that the other shall be entitled to equitable relief, including, without limitation, an immediate injunction enjoining any further breach, in addition to all other remedies available to such party at law or in equity. You expressly agree that jurisdiction for relief sought under this Section shall reside exclusively in the federal and state courts of Tallahassee, Florida.
g. Arbitration.
Any and all claims, grievances, demands, controversies causes of action or disputes of any nature whatsoever (including but not limited to tort and contract claims, and claims upon any law, statute, order or regulation) (hereinafter "Claims"), arising out of, in connection with, or relating to (i) the interpretation, performance or breach of these Terms of Service, or (ii) the arbitrability of any Claims under these Terms of Service shall be resolved by final and binding arbitration before a single arbitrator, on an individual basis. Such arbitration shall be administered in Tallahassee, Florida by the AAA in accordance with its then-existing Commercial Arbitration Rules. Except as provided herein, the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., shall govern all proceedings hereunder. The arbitrator's award may be enforced in any court of competent jurisdiction and shall include costs and may include reasonable attorneys' fees to the prevailing party, and judgment upon the award may be entered in any court having jurisdiction thereof. YOU EXPRESSLY ACKNOWLEDGE THAT BY ACCEPTING THESE TERMS OF SERVICE, YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY TRIAL. Notwithstanding the foregoing, nothing stated herein shall limit either party's right to obtain any provisional remedy, including, without limitation, injunctive or similar relief, from any court of competent jurisdiction as may be necessary to protect such party's rights and interests.
h. Compliance with Laws.
You agree to comply with all applicable laws, rules and regulations in connection with your activities under these Terms of Service, including without limitation the applicable regulations of the U.S. Department of Commerce and the United States Export Administration Act, as amended to assure that the Content and the Software are not exported in violation of the United States laws.