Flicks and Beats
Last Revised: March 1, 2009 Table Of Contents 1. The Agreement
2. Content
3. Use of the Service
4. Copyright
5. Artist Account Registration and Maintenance
6. Manager Account Registration and Maintenance
7. Purchases and Payment
8. Miscellaneous
9. Breach of this Agreement
10. Liability; Disclaimer; Release
11. General Provisions
1. THE AGREEMENT
1.1 Throughout these Terms of Use, the words "you" and "your" will refer to you, the user of the FlicksandBeats website. These Terms of Use (sometimes referred to as the "Agreement") govern your use of the FlicksandBeats website located at http://www.flicksandbeats.com and all related services (collectively, the "Service"), except third-party websites and links, as outlined in more detail below.
Your use of the FlicksandBeats Service and any material accessed through the Service, regardless of whether you register as a listener, trial user, artist or manager/agent indicates your full acknowledgement, understanding, consent, agreement and acceptance of all the terms of this Agreement and our Privacy Policy, which is incorporated herein by reference. This Agreement also governs the relationship between you and (“Flicks and Beats”) which owns and controls the FlicksandBeats website. The term "Flicks and Beats" also includes all officers, owners, agents, subsidiaries, affiliates, successors, licensees and assigns of FlicksandBeats. IF YOU DO NOT AGREE TO ALL OF THE PROVISIONS CONTAINED IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. FlicksandBeats will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically and expressly rejected.
1.2 FlicksandBeats reserves the right to change, add or remove portions of these Terms of Use and its Privacy Policy at any time and at its sole discretion and without notice. You agree to check these Terms of Use and our Privacy Policy periodically for changes. Your continued use of the Service following the posting of any changes means that you accept and agree to all such changes. As long as you comply with these Terms of Use, Flicks and Beats grants you a personal, non-transferable, non-exclusive, limited privilege to enter and use the Service. IF YOU OBJECT TO ANY TERMS OR CONDITIONS OF THIS AGREEMENT OR ANY SUBSEQUENT MODIFICATIONS THEREOF, OR IF YOU BECOME DISSATISFIED WITH THE SERVICE IN ANY WAY, YOU AGREE THAT YOUR SOLE RECOURSE IS TO IMMEDIATELY (1) DISCONTINUE YOUR USE OF THE SERVICE, (2) CANCEL YOUR SUBSCRIPTION OR USER ACCOUNT, AND (3) NOTIFY FLICKS AND BEATS OF YOUR CANCELLATION.
1.3 Your use of the Service may include the ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON OR THROUGH THE SERVICE, INCLUDING NOTICES OF CANCELLATION, CONTRACTS, APPLICATIONS AND POLICIES.
2. CONTENT
2.01 You acknowledge and agree that all text, graphics, photographs, trademarks, logos, music, film content, sounds, samples, user interfaces, visual interfaces, artwork, computer code and all other related content ("Content") is owned and controlled by you and does not infringe on any third party rights, including but not limited to the design, selection, structure, coordination, expression, the "look and feel" and arrangement of the content, contained on the Service is owned, controlled or licensed by or to FlicksandBeats, and is protected by various intellectual property and unfair competition laws, including those relating to trade dress, trade secret, copyright, patent and trademark rights.
2.02 Any reproduction, publication, further distribution or public exhibition of materials or Content provided through the Flicks and Beats Service, in whole or in part, by you is strictly prohibited. Except as expressly provided in these Terms of Use, no part of the Service and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, distributed or transmitted in any way (including "mirroring") to any other computer, server, network or other medium for publication or distribution or for any commercial enterprise, without obtaining the prior express written consent of FlicksandBeats.
2.03 You agree that FlicksandBeats and its licensors reserve the right to change, remove, suspend or disable access to any products, content or other materials comprising any part of the Service at any time without notice. You also agree that FlicksandBeats will not be liable for the removal of or disabling of access to any such products, content or materials under this Agreement, in any event. You agree that FlicksandBeats may also impose limits on the use of or access to certain features or portions of the Service without notice or liability to you in any case.
2.04 Trademarks, service marks, graphics, logos and other commercial identifiers used in connection with the Service are the trademarks of their respective owners. You are granted no right or license with respect to any of these trademarks or any use of such trademarks.
2.05 The sound and video media files/recordings ("Recordings") that are accessible through the Service and the copyrights in the Recordings are the valuable intellectual property of the copyright owner of such Recordings. You agree that any copies of Recordings or other Content you purchase or otherwise gain access to through the Service are solely for your own personal use. Any copying, redistribution or other use of the Recordings is strictly and expressly prohibited without the prior written consent of the copyright holder. All copyrights in and to the Service (including the compilation of content, postings, links to other Internet resources and descriptions of those resources) and software are owned by FlicksandBeats and/or its licensors. YOU AGREE THAT THE USE OF ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THESE TERMS OF USE, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
3. USE OF THE SERVICE
3.01 You must reside and have a billing address in the United States in order to purchase film and music media content from the FlicksandBeats service. You agree not to attempt to use the Service from any location outside of the United States and agree to abide by any U.S. or other applicable export control laws. Specifically, no Content or Recordings may be downloaded through the Service or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading Content or Recordings or using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you agree not to attempt to upload materials or Content that is restricted from use outside of the United States.
3.02 You agree not to scan, probe, or test the vulnerability of the Service or any other service connected to the Service. You agree not to breach the authentication or security measures on the Service or any network connected to the Service. You agree not to trace, seek to trace, reverse look-up any information on any other user of or visitor to the Service, or any other customer of FlicksandBeats, including any FlicksandBeats account not owned by you, to its source, or exploit the Service or any service or information related thereto made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information. You agree not to reverse engineer, decompile, disassemble, or translate the FlicksandBeats software or otherwise tamper with any of the security components related to the Content or the Service for any reason whatsoever. You agree that the Service and your activity on the Service may be controlled and monitored by FlicksandBeats for any reason, and FlicksandBeats reserves the right to enforce the terms of this Agreement with or without notice to you.
3.03 You agree not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any server(s) of FlicksandBeats, or to any of the services offered on or through the Service, by hacking, password "mining" or any other illegitimate means. You agree not to use any "spider," "robot," "deep-link," "data mine," "page-scrape," or other automatic device, program, methodology or algorithm, or any similar or equivalent manual or combination manual/automatic process, to acquire, access, copy or monitor any portion of the Service or any of its Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service by FlicksandBeats.
3.04 You agree not to use any software, device, or routine that interferes or attempts to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person's use of the Service. You agree that you will not take any action, intentionally or unintentionally, that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or the systems or networks of FlicksandBeats, or any systems or networks connected to FlicksandBeats or the Service. You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to FlicksandBeats or any other person or entity on or through the Service or any service or network offered on or through the Service.
3.05 You agree not to impersonate any other individual or entity or pretend that you are, or that you represent, someone else. You may not use the Service or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of FlicksandBeats or others.
3.06 You agree that the Service, and any digital film or music file purchased through the Service, may include a security framework using technology that protects digital information and limits your usage of such products to certain usage rules established by FlicksandBeats and/or its licensors ("Digital Rights Management Rules"). You agree to comply with all such Digital Rights Management Rules, as outlined below, and you agree not to violate or attempt to violate any security of such components.
3.06.01 You agree that you are entitled to export, burn or copy digital film or music media products solely for personal, noncommercial use in accordance with the Digital Rights Management Rules only.
3.06.02 The Service may enable you to listen to, view and/or read (as the case may be) film music, images, video, text and other material that may be obtained by you in digital form (previously referred to as "Content"). You agree that all Content accessible through the Service embodies the intellectual property of a party other than yourself, is protected by law, and is provided solely for your personal and non-commercial use. You agree that you will not use any Content as a musical "ringer" or "ring tone" in connection with phone calls unless you specifically purchase a particular song as a ring tone from the Service. You agree that you will not engage in any redistribution, transmission, sale, broadcast, public performance, rental or lending, adaptation, sub-license or other use of the Content provided through the Service without the prior express written consent of the copyright owner. The respective copyright owners reserve all rights in law and in equity. However, in all circumstances, you understand and acknowledge that your rights with respect to Content you obtain for use in connection with the Service will be limited by copyright law and by the Digital Rights Management Rules, as described in this Agreement and presented upon registration for the Service and during purchases made through the Service. The Digital Rights Management Rules approved by FlicksandBeats and/or the pertinent Content owner with respect to any Content shall govern your rights with respect to that Content regardless of whether unauthorized rules have been associated with that Content by another party.
3.06.03 You acknowledge and agree that any Recordings and Film/Media content or other Content downloaded from the Service may be provided to you in MP3 format, or other generally accepted format FlicksandBeats decides to use, in its sole discretion.
3.06.04 FlicksandBeats reserves the right to change or modify the Digital Rights Management Rules at any time without further notice. Any Media purchased prior to any such change, however, will maintain the usage permissions that were in effect at the time of such Media purchase. Furthermore, FlicksandBeats and/or the owners of the Content may, from time to time, remove Content from the Service or modify Content without notice.
3.06.05 Any use of the film or sound recording embodied in a digital download, other than as permitted by the applicable Digital Rights Management Rules, is a violation of the copyright in such sound recording under applicable laws and is prohibited. While you have purchased a personal license to play, burn or transfer a song (as outlined above), you agree that you do not have any commercial or promotional rights to the media file you purchased. You agree that the delivery of Content does not transfer to you any commercial or promotional use rights in the same.
3.06.06 You agree that your purchase of digital Content products or other Content through the Service constitutes your acceptance of and agreement to use such products and Content solely in accordance with the Digital Rights Management Rules and other terms of this Agreement. Further, any unauthorized use of such products may constitute a copyright infringement. Any security technology associated with any Content is an inseparable part of such Content. You agree that the Digital Rights Management Rules govern your rights with respect to such Content, in addition to any other terms or rules that may have been established between you and another party.
3.06.07 You acknowledge that some of the aspects of the Service, Content, digital music, digital film products and administering of the Digital Rights Management Rules require the ongoing involvement of FlicksandBeats. Therefore, in the event that FlicksandBeats changes any part of the Service or discontinues the Service, which FlicksandBeats may do at its election, you acknowledge that you may no longer be able to use the digital music products provided through the Service to the same extent as prior to such change or discontinuation, and that FlicksandBeats shall have no liability to you in any such case.
4. COPYRIGHT
4.01. FlicksandBeats policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material or Content claimed to be the subject of infringing activity. If FlicksandBeats removes or disables access to comply with the Digital Millennium Copyright Act, we will make a good-faith attempt to contact the owner or administrator of the Content at issue in order that they may make a counter notification pursuant to Sections 512(g) of the DMCA. We will document all notices of alleged infringement on which we act.
4.01.01. A copyright holder must provide a written communication, which must be sent via certified mail and email that sets forth the items specified below. Note that you will be held liable for damages, including costs and attorneys' fees, if you materially misrepresent that a product or activity is infringing your copyrights. If you are unsure as to whether certain material of yours is protected by copyright laws or is being infringed, we strongly suggest that you contact an attorney prior to submitting a request.
4.01.02. Please use the following format in preparing and submitting your written notification:
(1) Identify the copyrighted work in sufficient detail that you believe has been infringed, including where the work appears;
(2) Identify the material that you claim infringes on your copyrighted work described in Item 1 above, including a detailed description of where the material appears;
(3) Provide your contact information including your telephone number, mailing address and email address; and
(4) Include the following statements in your written notification:
(i)"I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law."
(ii)"I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
(5) Please sign your written notification and send it to the following address:
Flicks and Beats, 134 Range Rd, Wilton, CT 06897. AND TO Customer.service@flicksandbeats.com
4.01.03 If your materials have been taken down from the Service, you may make a counter notification pursuant to Section 512(g) of the Digital Millennium Copyright Act. When we receive a counter notification that is in accordance with Section 512(g) of the Act, we will reinstate the material in question. You must provide a written communication, which must be sent via certified mail and email that sets forth the items specified below to make a counter notification.
4.01.04 Please use the following format in preparing and submitting your written counter notification:
(1) Identify the URLs of the materials that FlicksandBeats has removed.
(2) Provide your name, mailing address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Fairfield County, Connecticut, if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection 512(c)(1)(C) of the DMCA or an agent of such person.
(3) Include the following statements in your written notification: "I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
(4) Please sign your written counter notification and send it to the following address:Flicks and Beats, 134 Range Rd, Wilton, CT 06897. AND TO Customer.service@flicksandbeats.com
4.01.05 Upon receipt of a valid claim (e: a claim in which all required information is substantially provided) FlicksandBeats will undertake to have the disputed Material removed from public view. FlicksandBeats will also notify the user who posted the allegedly infringing material that we have removed or disabled assess to that Material. FlicksandBeats has no other role to play either in prosecuting or defending claims of infringement, and cannot be held accountable in any case for any damages, regardless of whether a claim of infringement is found to be true or false. PLEASE NOTE: If you materially misrepresent that Material infringes your copyright interests, you may be liable for damages including court costs and attorneys fees and could be subject to criminal prosecution for perjury.
4.01.06 When a counter notification is submitted, FlicksandBeats designated agent will present your counter notification to the person who filed the infringement complaint. Once your counter notification has been delivered, FlicksandBeats is allowed under provisions Section 512 to restore the removed Material in not less than ten or more than fourteen days, unless the complaining party serves notice of intent to obtain a court order restraining the restoration. FlicksandBeats reserves the right to immediately terminate any subscribers and account holders who are found to be repeat copyright infringers.
4.01.08 FlicksandBeats has a designated claims agent. FlicksandBeats agent is: Bazyli D. Smolinski, 134 Range Rd, Wilton CT 06897.
Bazyli@FlicksandBeats.com By Phone (203) 981-9400
5. ARTIST ACCOUNT REGISTRATION AND MAINTENANCE
5.01 When you register your account as an Artist, you agree to provide current, accurate and complete information required to register with the Service and at other times as may be required in the course of using the Service (collectively, "Registration Data"). Registering as an Artist is optional and voluntary, but may be necessary to access certain areas, features, or Content contained in the Service, and is necessary to distribute your original music and related goods through the Service. You acknowledge and agree that if you elect not to register with the Service, you may not be able to access certain areas, features or Content. You agree to provide a valid email address when you register with the Service as an Artist. You also agree to maintain and update your Registration Data as required to keep it current, accurate and complete. You agree that FlicksandBeats may terminate your rights to any part of or the entire Service if any information you provide is false, incomplete or inaccurate. FlicksandBeats reserves the right to reject any Artist user name that is, in FlicksandBeats sole and absolute judgment, offensive. You agree that FlicksandBeats may store and use the Registration Data you provide (including credit card information) for use in maintaining your accounts and billing fees to your credit card.
5.02 When you register as an Artist on the Service, you will establish a distribution account ("Artist Account"). You agree that you are solely responsible for maintaining the confidentiality and security of your Artist Account. You agree that you are entirely responsible for all activities that occur on or through your Artist Account, and you agree to immediately notify FlicksandBeats of any unauthorized use of your Artist Account or any other breach of security. You agree to not reveal your Artist Account information to anyone else or use anyone else's Artist Account. You agree that FlicksandBeats is not responsible for any losses arising out of any use, whether authorized or unauthorized by you, of your Artist Account. You agree to use particular caution when accessing your Artist Account from a public or shared computer so that others are not able to view or record your password or other information about your Artist Account. You also agree to use the Service for your sole, personal use (or, if you are registering on behalf of a group of artists or a band, you agree to use the Service solely for the use of yourself and the artists in your band) and agree not to authorize others to use the Service with your Artist Account or otherwise transfer your right to use the Service to any other person or entity.
5.03 As a registered Artist, you will be allowed to upload recordings of your original film and or music onto the Service for potential distribution to other users of the Service. You agree that you will not upload to, or store on, or offer for sale through the Service any sound recording that is NOT AN ORIGINAL WORK OF AUTHORSHIP BY YOU OR THE GROUP OF ARTISTS IN YOUR BAND. You also agree that you will not upload to, or store on, or offer for sale through the Service any sound recording or media file that is a derivative work, as that term is understood under the copyright laws of the United States, of a third party's original work (which may include "cover songs" and songs utilizing "samples"). You agree to indemnify and hold FlicksandBeats harmless for any claims made against it as a result of your sale or offer for sale of any sound recording. You acknowledge and agree that FlicksandBeats has the right, in its sole discretion, to remove sound recordings you have stored on the Service which FlicksandBeats believes might infringe on the copyright or other intellectual property rights of others, or that FlicksandBeats believes is defamatory, obscene, pornographic, or violates any applicable law, rule, or regulation. You also acknowledge that FlicksandBeats does not represent or guarantee that any sound recordings you offer for sale through the Service will actually sell. By uploading or storing sound recordings on the Service, you hereby grant FlicksandBeats a royalty-free, non-exclusive license to broadcast each said recording over the internet to users of the Service via any medium FlicksandBeats sets for distribution and promotion including but not limited to “Live Radio” play, “events listings”, “Featured Artists Listings”, “News Articles”, “Reviews”, “Fan Favorites” and others.
5.04 If you register for an Artist Account at the Trial level (a "Trial Account"), you will be allowed to store no more than 5 individual sound recordings, with each sound recording limited to less than 10 megabytes, on the Service at one time. The monthly or annual fee for a Trial Account will be an amount set by FlicksandBeats from time to time, and will be displayed on the registration screen and agreed to by you at the time you register your account.
5.05 If you register for an Artist Account at the standard level (a "Standard Account"), you will be allowed to store a limited number of media recordings/uploads, with each upload media file limited to less than 20 megabytes, on the Service at one time. The annual fee for a Standard Account will be an amount set by FlicksandBeats from time to time, and will be displayed on the registration screen and agreed to by you at the time you register your account.
5.06 If you register for an Artist Account at the premium level (a "Premium Account"), you will be allowed to store an unlimited number of media recordings/uploads, with each upload media file limited to less than 20 megabytes, on the Service at one time. The annual fee for a Premium Account will be an amount set by FlicksandBeats from time to time, and will be displayed on the registration screen and agreed to by you at the time you register your account.
5.07 If you register either a Standard Account or a Premium Account, you are allowed to sell copies of the film/music Media files you have stored on the Service to other users of the Service. You are also allowed to set the sale price for your film/music Media files and recordings, subject to your compliance with the other terms of this Agreement.
5.07.01 You acknowledge and agree that FlicksandBeats will retain “fees” for facilitating the sale of each film/music media file or recording you make using the Service collectively (the "Transaction Fee") and (the “Processing Fee”) which FlicksandBeats will set or modify from time to time. (“ the Transaction Fee”) will be displayed on the registration screen and agreed to by you at the time you register your account. As of 2/1/2009 (“the Transaction fee”) is 30% of the gross sale. FlicksandBeats reserves the right to modify or change (“the Transaction Fee” )at its sole discretion any time without advance notice.
5.07.02 You acknowledge and agree that FlicksandBeats will also retain a (“Processing Fee”) for payment processing for each sale you make using the Service (the Processing Fee") which FlicksandBeats will set or modify from time to time. “(the Processing Fee”) will be displayed on the registration screen and agreed to by you at the time you register your account. As of 2/1/2009 the Processing fee is thirty two cents per transaction. FlicksandBeats reserves the right to modify or change (“the Processing Fee”) at its sole discretion any time without advance notice.
5.07.03 You acknowledge that FlicksandBeats has the right to set or modify a minimum sale price for your media files or recordings at any time in order to cover any “fees” and costs FlicksandBeats incurs incident to your use of the Service without any notice to you.
5.08 As a registered Artist, you may be allowed to or have an option to offer for sale and sell apparel and other merchandise including tickets and other promotional material related to your film, music, yourself, or your band (collectively "Merchandise") to other users of the Service. You agree not to sell or offer for sale any Merchandise through the Service that infringes on the copyright, trademark, or other intellectual property rights of third parties. You acknowledge and agree that FlicksandBeats has the right, in its sole discretion, to remove Merchandise you offer for sale on the Service which FlicksandBeats believes might infringe on the copyright or other intellectual property rights of others, or that FlicksandBeats believes is defamatory, obscene, pornographic, or violates any applicable law, rule, or regulation. You also agree to fairly and accurately describe and depict any Merchandise you offer for sale. You acknowledge that FlicksandBeats is not a party to any sales transaction between you and another user of the Service, that FlicksandBeats has no control over and does not guarantee your ability to sell or the ability of buyers to pay for Merchandise, or that a buyer or seller will actually complete a transaction. You agree to pay to FlicksandBeats a (“Listing Fee”) for listing each Merchandise/Media File for sale on the Service, and a (“Processing Fee”) for facilitating each Merchandise sales transaction between you and another user of the Service. The Listing Fee and Processing Fee will be set by FlicksandBeats from time to time, and will be displayed on the registration screen and agreed to by you when you register with the Service. You acknowledge that FlicksandBeats may change the (“Listing Fee”) and (“Processing Fee”) after first providing notice to you. You acknowledge that FlicksandBeats does not transfer legal ownership of Merchandise from the seller to the buyer, and nothing in this Agreement shall modify the governing provisions of the Uniform Commercial Code or corresponding state laws under which legal ownership of an item is transferred upon physical delivery of the Merchandise to the buyer by the seller. You further acknowledge that FlicksandBeats cannot guarantee continuous or secure access to the Service, and operation of the Service may be interfered with by numerous factors outside of FlicksandBeats control. Accordingly, to the fullest extent legally permitted, FlicksandBeats excludes and disclaims all implied warranties, terms and conditions. You acknowledge that FlicksandBeats is not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of the Service. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. You acknowledge that you alone are responsible for creating, manufacturing, guaranteeing, and shipping the Merchandise you offer for sale on the Service.
5.09 In order to receive payment for sales of sound recordings and merchandise through the Service, you agree to open and maintain a valid and verified PayPal account. FlicksandBeats will remit funds owed to you from purchases by users of the Service, less any applicable (“Transaction Fee”) and (“Processing Fee”) and or (“Listing Fee”), using ONLY the PayPal account information you provide to and maintain with FlicksandBeats. FlicksandBeats will have PayPal remit funds owed to you on the first of every month if the amount owed to you is greater than or equal to $25.00. When the amount owed to you for any given month is less than $25.00, the amount owed will roll over into the next month, until you reach the $25.00 threshold. FlicksandBeats shall not be liable for any failure to remit funds to you because you have not maintained an accurate and valid PayPal account information on file in your Artist Account information and Registration Data. You acknowledge and agree that FlicksandBeats may use your PayPal account or credit card information to provide a refund to users of the Service that purchase Merchandise through the Service but fail to receive said Merchandise in a reasonable period of time, as determined by FlicksandBeats in its sole discretion. You have sixty (60) days from the date of any remittance of funds to you to dispute the amount of said remittance with FlicksandBeats. You acknowledge and agree that your failure to dispute any remittance within this time frame constitutes your acceptance and agreement that the amount so remitted was and is the correct amount.
6. MANAGER ACCOUNT REGISTRATION AND MAINTENENCE
6.1 If you are registering with the Service as a record label, producer, agent, scout or manager some of your rights and obligations with respect to the Service will be governed by a separate written agreement between you and FlicksandBeats (the "Distribution Agreement"). If any of the terms of these Terms of Use conflict with the Distribution Agreement, the terms of the Distribution Agreement control. Where they are not in conflict, you agree to abide by and bound by these Terms of Use.
Please contact customer.service@flicksandbeats.com for a detailed Manager Account Specification and User Requirement specification sheet.
7. PURCHASES AND PAYMENT
7.01 All (“Fee’s”) and Prices on FlicksandBeats the site are based on United States dollar. FlicksandBeats accepts PayPal, Visa, MasterCard, American Express or Discover in U.S. funds drawn on U.S. banks for all digital media purchases and other sales transactions involving users of the Service. You acknowledge that we are unable to accept credit cards for purchases from anyone from outside the U.S. When placing your order, the Service will obtain a pre-approval from the holder of your credit card or PayPal for the amount of your purchase. You agree to that amount being billed to your credit card or PayPal account at the time of purchase. If a purchase is declined, you agree to review your billing information to make sure it is correct and then resubmit.
7.02 You agree to pay for all products and sound recordings you purchase through the Service, and that FlicksandBeats may charge your credit card or PayPal account for any products you purchase, and for any additional amounts as may be accrued by or in connection with your User Account (including any taxes and late fees, as applicable). YOU AGREE THAT YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING FLICKSANDBEATS WITH A VALID CREDIT CARD OR PAYPAL ACCOUNT FOR PAYMENT OF ALL FEES.
7.03 All fees will be billed to the credit card or PayPal account that you designate during the registration process. If you want to designate a different credit card or PayPal account, or if there is a change in your credit card or PayPal account status, you agree to change and update your payment account information then on file with the Service.
7.04 Occasionally, technical problems may delay or prevent delivery of the product you purchase. You agree that your exclusive and sole remedy against FlicksandBeats with respect to such product, which is not delivered within a reasonable period of time, as determined by FlicksandBeats in its sole discretion, will be either replacement of such product or refund of the purchase price paid for such product whichever FlicksandBeats decides at its sole discretion.
7.05 The Service will charge sales tax for purchases made by users whose billing address is in Connecticut or where otherwise required by law.
7.06 You agree that no refunds will be given for any digital film and music once content has been downloaded or uploaded to the Service. You agree that no membership refunds of any kind will be accepted or processed at ant time for any reason. Trouble media downloads may be re-downloaded free of charge within 24 hrs of initial purchase by contacting Customer.Service@flicksandbeats.com No refunds or re-downloads will be accepted or processed after the 24 hr grace period.
7.07 You acknowledge that FlicksandBeats is not a party to any sales transaction between you and another user of the Service, including sales transactions involving Merchandise, and that FlicksandBeats merely helps facilitate transactions between willing buyers and willing sellers. You also acknowledge and agree that FlicksandBeats has no control over and does not guarantee any users ability to sell or the ability of buyers to pay for Merchandise, or that a buyer or seller will actually complete a transaction. You acknowledge that FlicksandBeats does not transfer any legal ownership of Merchandise from the seller to the buyer, and nothing in this Agreement shall modify the governing provisions of the Uniform Commercial Code or corresponding state laws under which legal ownership of an item is transferred upon physical delivery of the Merchandise to the buyer by the seller. You further acknowledge that FlicksandBeats cannot guarantee continuous or secure access to the Service, and operation of the Service may be interfered with by numerous factors outside of FlicksandBeats control. Accordingly, to the fullest extent legally permitted, FlicksandBeats excludes and disclaims all implied warranties, terms and conditions. You acknowledge that FlicksandBeats is not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of the Service, or your purchase of Merchandise. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
8. MISCELLANEOUS
8.01 The Service may contain links to other independent third-party websites ("Links"). You agree that the Links are provided solely as a convenience to you and our visitors. You also agree that the Links are not under the control of FlicksandBeats, and that FlicksandBeats is not responsible for and does not endorse the content of such Links, including any information or materials contained on such Links. You acknowledge and agree that FlicksandBeats does not have any responsibility or liability for any information, data, communications or materials available on such Links. You agree that the Links are provided only for your convenience and you therefore access them at your own risk.
8.02 You acknowledge that the Service is available for individuals 18 years of age or older. If you under the age of 18, but over the age of 15, you agree to and represent that you have reviewed this Agreement with your parent or guardian to make sure that you and your parent or guardian understand and consent to the terms of this Agreement. FlicksandBeats does not permit registration by, and will not knowingly collect or use personally identifiable information from, anyone under 15 years old.
8.02.01 Pursuant to 47 U.S.C. Section 230 (d), as amended, FlicksandBeats herby notifies you that parental control protections (such as computer hardware, software or filtering services) are commercially available and that they may assist you in limiting access to material that is deemed harmful to minors. Information identifying current providers of such protections can be located at: http://internet-filter-review.toptenreviews.com If the link becomes inactive or disabled please contact customer.service@flicksandbeats.com for more information that pertains to minor safety.
8.03 To enable the FlicksandBeats shopping cart application, you may need to set your web browser to allow cookies. You acknowledge that your failure to do so may adversely impact your shopping experience. You also acknowledge that using a slow internet connection may negatively affect your experience using the Service and that FlicksandBeats is not liable to you in any such case.
8.04 You agree that FlicksandBeats may, from time to time, present programming fixes, updates and upgrades to you, including version updates to the services software. You acknowledge that your failure to incorporate such updates may affect your ability to use the Service.
8.05 You acknowledge that it may be necessary to store identifying information from your computer or other device on the device itself in order to track licenses for the songs you purchase from the Service.
8.06 In an attempt to help parents stay informed, FlicksandBeats may provide users of the Service with the option to label songs that potentially contain inappropriate content. Artists and record labels that make their music available on the Service may, but are not required to, label their own songs that contain strong language or depictions of violence, sex or substance abuse. Similarly, users of the Service may be given the option of reporting inappropriate material to FlicksandBeats. All such inquiries should be sent to customer.service@flicksandbeats.com FlicksandBeats reserves the right to take whatever action it deems necessary in response to such reports. When you see a song with a warning label of any kind, parental discretion is advised. This is not a determination of whether or not this music is appropriate for a particular listener; it is merely a notice to consumers (parents in particular) that discretion is advised. Since this is a voluntary program and evaluating lyrical content is not an exact science, parents are encouraged to be aware of the music and film their children are listening to and watching and to use the resources available to make informed decisions about purchases. In some cases, labels and artists may also make available an edited or "clean" version of a song or album. This is not a guarantee that the music will be free of any objectionable content; it is simply a notice to consumers that the album has been modified from the original and does not include all of the same content contained in the "explicit" version.
8.07 You acknowledge and agree that the Service and the information and Content contained therein are for informational and entertainment purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time, and you agree that FlicksandBeats is not liable for your reliance on such errors. Before you decide to act on information you find on the Service, you should independently confirm any facts that are important to your decision. The Service and its information providers make no warranty as to the reliability, accuracy, timeliness, usefulness or completeness of the information on the Service.
8.07.01 FlicksandBeats is not responsible for any typographic errors in the Service.
8.08 The Service may include live chat rooms, events listings, classified adds, forums and/or other public-posting areas such as user comments ("User Generated Content"), and you acknowledge and agree that FlicksandBeats is granted nonexclusive, royalty license to reproduce any User Generated Content by you. You acknowledge that FlicksandBeats will not and cannot review every posting that may be made in those public areas. FlicksandBeats does not endorse or guarantee the accuracy of any posting regardless of its source or alleged source. FlicksandBeats is not responsible or liable for any material posted in any chat room or on any bulletin board, forum or chat room. FlicksandBeats has the right but not the obligation to monitor the content of the Service including, without limitation, the chat room, bulletin boards and forums to determine compliance with this Agreement and any operating rules established by FlicksandBeats and to satisfy any law, regulation or authorized government request. FlicksandBeats has the right in its sole and absolute discretion to edit, refuse to post or remove any material submitted to or posted on the Service. You hereby waive any and all rights you might have with respect to the alteration, modification or removal of any such content. Although FlicksandBeats prohibits it, users might post their e-mail addresses in these public areas. In the event such posting are made, you agree not to utilize these e-mail addresses for purposes of sales or spamming (i.e., unsolicited e-mail).
8.09 By using the Service, you agree not to post any content which libels, defames, invades privacy or is indecent, obscene, pornographic, abusive, threatening, illegal, solicits gambling or engages in any gambling activity, contains a virus or other harmful component, infringes on the ability of others to enjoy the Service or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content, contains links to other sites that contain the kind of content which falls within the description set out above.
8.10 The Service may, from time to time, contain sweepstakes and other contests and promotions that require you to provide FlicksandBeats with material or information about yourself. Those sweepstakes, contests or promotions may be governed by a separate set of rules that may have eligibility requirements. You acknowledge and agree that it is your responsibility to read such rules to determine whether your participation, registration and/or entry are valid. You agree to read and comply with such rules before entering any sweepstakes, contest or promotion provided on the Service.
8.11 FlicksandBeats welcomes your comments but does not accept unsolicited submissions for Content, Services, or products and we cannot review your submissions. FlicksandBeats has adopted this policy to avoid misunderstandings about projects FlicksandBeats develops which may appear to be similar to someone else(s) idea, suggestion or material. If you choose to submit material to FlicksandBeats despite this request not to submit ideas, you acknowledge and agree that FlicksandBeats will not treat any submission as confidential. You further acknowledge and agree that FlicksandBeats will not be liable for any use or disclosure of that submission to any third party and/or for loss of any material submitted and that FlicksandBeats may use it for any purpose. By submitting material or suggestions to FlicksandBeats, you acknowledge that the material or suggestions may be identical with or similar to themes, plots, ideas, formats or other elements that FlicksandBeats has independently developed or that has or may come to FlicksandBeats from other sources. You represent and warrant that the submission is wholly original to you and its use will not violate the rights, common law or otherwise, of any kind or nature whatsoever of any third party or entity. Any submission or suggestion will become the sole property of FlicksandBeats and will not be returned to you and FlicksandBeats shall not be required to respond to any submission received. You agree that you are not entitled to any compensation of any kind by reason of FlicksandBeats use of similar or identical material or content.
9. BREACH OF THIS AGREEMENT
9.01 You agree that your failure to abide by this Terms of Use agreement is a material breach of this Agreement for which FlicksandBeats may pursue all rights and remedies it has pursuant to this Agreement, and any other rights, remedies and causes of action against you it may have at law or in equity. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice and will cause irreparable harm to FlicksandBeats, for which monetary damages would be inadequate, and you consent to FlicksandBeats obtaining any injunctive or equitable relief that FlicksandBeats deems necessary or appropriate in such circumstances. You agree that these equitable remedies are in addition to any other remedies FlicksandBeats may have at law or in equity. You agree that FlicksandBeats may, in its sole discretion and without prior notice, terminate your access to the Service for violations of these Terms of Use or other agreements or guidelines which may be associated with your use of the Service or as FlicksandBeats deems it necessary in its sole discretion.
9.02 You acknowledge and agree that FlicksandBeats has the right to takes the steps that FlicksandBeats believes are reasonably necessary or appropriate to enforce and/or verify your compliance with any and all parts of these Terms of Use (including but not limited to FlicksandBeats right to cooperate with any legal process relating to your use of the Service and/or products, and/or a third-party claim that your use of the Service and/or products is unlawful and/or infringes such third party's rights).
9.03 You further acknowledge and agree that FlicksandBeats has the right at all times to disclose any information that FlicksandBeats deems necessary to comply with any applicable law, regulation, legal process or governmental request. You agree that FlicksandBeats also may disclose your information when FlicksandBeats determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection or collection purposes. You agree that FlicksandBeats may disclose any information it has about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Service, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) to the rights or property of FlicksandBeats, or the rights or property of visitors to or users of the Service, including the customers of FlicksandBeats. You agree that FlicksandBeats has the right, without liability to you, to disclose any Registration Data and/or User Account information to law enforcement authorities, government officials and/or a third party, as FlicksandBeats believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Use (including but not limited to FlicksandBeats right to cooperate with any legal process relating to your use of the Service and/or products, and/or a third-party claim that your use of the Service and/or products is unlawful and/or infringes such third party's rights). For further information regarding your privacy, please review our Privacy Policy available at www.flicksandbeats.com, which is incorporated into these Terms of Use by reference. You may also contact customer.service@flicksandbeats.com to obtain a copy.
9.04 You acknowledge and agree that FlicksandBeats may preserve any transmittal or communication by you with FlicksandBeats through the Service or any service offered on or through the Service indefinitely, and may also disclose such data if required to do so by law or FlicksandBeats determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of FlicksandBeats, its employees, users of or visitors to the Service, and the public.
9.05 If FlicksandBeats takes any legal action against you as a result of your violation of these Terms of Use, you agree that FlicksandBeats will be entitled to recover from you, and you agree to pay, all reasonable attorneys' fees and costs of such action, in addition to any other relief granted to FlicksandBeats. You agree that FlicksandBeats will not be liable to you or to any third party for termination of your access to the Service as a result of any violation of these Terms of Use.
10. LIABILITY; DISCLAIMER; RELEASE
10.01 Except where explicitly prohibited by law, you acknowledge and agree that in no event will FlicksandBeats be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if FlicksandBeats has been advised of the possibility of such damages. If, notwithstanding the other provisions of these Terms of Use, FlicksandBeats is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Service or any Content, you acknowledge and agree that FlicksandBeats liability shall in no event exceed $50
10.02 YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, ITS CONTENT AND ANY TECHNOLOGY ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS WITH NO WARRANTY OF ANY KIND. ALL INFORMATION PROVIDED ON THE SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE. FLICKSANDBEATS DOES NOT PROMISE THAT THE SERVICE OR ANY CONTENT OR FEATURE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. FLICKSANDBEATS CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. FLICKSANDBEATS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FLICKSANDBEATS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE AND/OR ANY OTHER FLICKSANDBEATS SERVICES. YOU AGREE TO ASSUME TOTAL RESPONSIBILITY AND LIABILITY FOR YOUR USE OF THE SERVICE AND ANY LINKS. YOU AGREE THAT YOUR SOLE REMEDY AGAINST FLICKSANDBEATS FOR DISSATISFACTION WITH THE SERVICE, ANY CONTENT OR FEATURE OF THE SERVICE IS TO STOP USING THE SERVICE, ANY SUCH CONTENT, OR FEATURE. THIS LIMITATION AND DISCLAIMER OF RELIEF IS HEREBY EXPRESSLY MADE AND ACKNOWLEDGED AS A PART OF THE AGREEMENT BETWEEN THE PARTIES TO THESE TERMS OF USE.
10.03 You agree that the disclaimer in Section 11.02 above applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action. You agree that FlicksandBeats has the right to do any of the following, without notice, at any time: (1) to modify or change the Service, or any portion of the Service, and any applicable policies or terms; (2) to modify, suspend or terminate operation of or access to the Service, or any portion of the Service, for any reason; and (3) to interrupt the operation of the Service, or any portion of the Service, as necessary to perform routine or non-routine maintenance, error correction or other changes.(4) shut down the system entirely.
10.04 In the event that you have a dispute with one or more other users of the Service for any reason, you hereby release FlicksandBeats (and its officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and/or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
10.05 Further, in the event you have a dispute with any third party (including any artist in the entertainment industry) that for any reason arises out of any special promotion offered by FlicksandBeats, you hereby release FlicksandBeats (and its officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
10.06 If you are a California resident, you hereby acknowledge and represent that you understand the full nature, extent and import of California Civil Code §1542 and of these Terms of Use. Accordingly, you acknowledge and agree that you waive and relinquish any and all rights or benefits that you have, had, or may have had under California Civil Code §1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
11. General Provisions
11.01 You agree to indemnify and hold FlicksandBeats, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, and any of its third-party technology providers, harmless from any demands, loss, liability, claims or expenses, including attorneys' fees, made against FlicksandBeats by any third party due to or arising out of, or in connection with, your use of the Service.
11.02 You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the United States and by the laws of the State of Connecticut without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Fairfield County, Connecticut, and waive any objection to jurisdiction or venue.
11.03 Any offer for any feature, product or service made on the Service is void where prohibited. FlicksandBeats administers and operates the Service from its location in Wilton, Connecticut, USA; other FlicksandBeats websites may be administered and operated from various locations inside and outside of the United States. Although the Service is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Service are available to all persons or in all geographic locations, or appropriate, available, permissible for use outside the United States. FlicksandBeats reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. If you choose to access the Service from outside the United States, you agree that you are doing so on your own initiative and that you are solely responsible for complying with all applicable laws.
11.04 These Terms of Use constitute the entire agreement between you and FlicksandBeats with regard to your use of the Service, and any and all other written or oral agreements or understandings previously existing between you and FlicksandBeats with respect to such use are superseded and cancelled. If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect.
11.05 You acknowledge and agree that any failure of FlicksandBeats to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by FlicksandBeats of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between FlicksandBeats and you or any other party be deemed to modify any provision of these Terms of Use.
11.06 You acknowledge and agree that you and FlicksandBeats are independent contractors, and have no agency, partnership, joint venture, employer-employee, franchisor-franchisee or other relationship with each other. You further acknowledge and agree that the relationship between FlicksandBeats and every other user of the Service is that of independent contractors, and that FlicksandBeats has no agency, partnership, joint venture, employer-employee, franchisor-franchisee or other relationship with any other user of the Service.
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