This Terms of Service Agreement ("Agreement") describes the legal relationship between you (an individual, representing yourself, or if applicable, acting as legal representative for a band, group, company or other legal entity) ("you," "your," "Rights Holder" and/or "Member" is applicable) and AirPlay Direct, LLC. AirPlay Direct, LLC (collectively with our licensees and assignees referred to in this Agreement as "AirPlay Direct") is the owner and operator of this website (the "AirPlay Direct Site").
By accessing, browsing and/or otherwise using the AirPlay Direct Site you are indicating that you have read and agree to be bound by this Agreement. Please read these terms and conditions carefully. If you do not agree to the terms and conditions of this Agreement, do not access the AirPlay Direct Site.
Although AirPlay Direct may attempt to notify you when some changes are made to this Agreement, we may modify this Agreement at any time and from time to time in our sole discretion without notice to you. You should periodically review this Agreement carefully in order to make sure that you are aware of the most current terms and conditions for the use of the AirPlay Direct Site because any use or viewing of the AirPlay Direct Site by you after any change to this Agreement, whether or not you have reviewed the amended Agreement, constitutes your acceptance of the Agreement as changed. This Agreement as amended from time to time shall remain in full force and effect while you are a Member and anytime you use or access the AirPlay Direct Site.
The current version of this Agreement is March 1, 2010. This Agreement applies to your access to and use of this website.
The following terms shall have the following meanings for purposes of this Agreement:
- "Account" means that portion of the AirPlay Direct Site on which a person who registers through the AirPlay Direct Site enters and/or posts various information about himself or herself, Rights Holder Content or Artwork some of which is intended to be published for display to other Members or Visitors.
- "AirPlay Direct Site" means the website owned by AirPlay Direct and accessed through the domain name www.airplaydirect.com where Rights Holder has registered to digitally deliver music through AirPlay Direct according to this Agreement. By agreeing to this Agreement, any sound recordings made available on the AirPlay Direct Site that Rights Holder as a Member makes available for digital delivery by AirPlay Direct according to the terms of this Agreement.
- "Artwork" means album cover artwork and any other artwork relating to Rights Holder Content that Rights Holder provides to AirPlay Direct. Any artwork that is provided by or on behalf of Rights Holder to AirPlay Direct will be deemed to have been cleared by Rights Holder unless Rights Holder promptly notifies AirPlay Direct in writing to the contrary.
- "Digital Masters" means copies of Rights Holder Content in digital form, which AirPlay Direct may deliver through digital download, streams or burns, as individual tracks or as a whole album, pursuant to the terms and conditions of this Agreement.
- "Member" means a person, including a Rights Holder, who registers through the AirPlay Direct Site and has an Account on the AirPlay Direct Site.
- "Membership" means an account of a Member with the AirPlay Direct Site.
- "Rights Holder Content" means sound recordings and underlying musical compositions that Rights Holder has made available to AirPlay Direct for digital delivery on the AirPlay Direct Site in accordance with this Agreement. Any sound recordings and the underlying musical compositions that are provided by or on behalf of Rights Holder to AirPlay Direct must be owned or controlled by Rights Holder and/or have been cleared by Rights Holder.
- "Service" means any service offered by AirPlay Direct through the AirPlay Direct Site.
- "Visitor" means a person who uses the AirPlay Direct Site other than as a Member who has logged in.
In order to have an Account or use some features of the AirPlay Direct Site, you must be a Member. You become a Member by registering through the AirPlay Direct Site. You agree to provide accurate and complete information when registering and to keep such Account information updated.
When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You are solely responsible for the activity that occurs through your Membership, and you agree to keep your password secure. You agree not to allow any other person to use your password or Membership, and you agree never to use another Member's password or Membership. You agree to notify AirPlay Direct immediately if you suspect any breach of security or unauthorized use of your Membership. AIRPLAY DIRECT WILL NOT BE LIABLE FOR, AND AIRPLAY DIRECT EXPRESSLY DISCLAIMS, ANY COSTS OR LOSSES CAUSED BY ANY UNAUTHORIZED USE OF YOUR MEMBERSHIP, BUT YOU MAY BE LIABLE FOR THE COSTS OR LOSSES OF AIRPLAY DIRECT OR OTHERS DUE TO SUCH UNAUTHORIZED USE.
You may terminate your Membership at any time for any or no reason by notifying AirPlay Direct in writing in accordance with the notification section of this Agreement, or pursuant to any other method set forth on the AirPlay Direct Site. AirPlay Direct may terminate your Membership at any time for any or no reason, with or without prior notice or explanation, and without any liability.
AirPlay Direct reserves the right, but has no obligation, to monitor or screen Rights Holder Content or Artwork, both in real time and in AirPlay Direct's archives. AirPlay Direct shall have the right in its sole discretion to: (i) remove any material that in its sole opinion may violate, or that is alleged to violate, any applicable law or this Agreement; (ii) remove an Account, suspend or terminate a Membership, or suspend or terminate a Member's and/or Rights Holder's access to or use of any other portion of the AirPlay Direct Site, or otherwise terminate any use of the AirPlay Direct Site if AirPlay Direct believes or determines in its sole discretion that such use is unlawful and/or prohibited by this Agreement; and (iii) inform law enforcement agencies of any illegal activity or material AirPlay Direct suspects or discovers on, through, or otherwise relating to AirPlay Direct Site and provide law enforcement officials with all requested information about the Membership from which the illegal activity or material originated, including without limitation voluntarily providing to such law enforcement agencies copies of any Rights Holder Content or Artwork associated with such Member.
3.Use of the AirPlay Direct Site
4.Rights Holder Content and Artwork; Authorization
- Rights Holder shall obtain and pay for any necessary clearances and licenses in the Territory for all Rights Holder Content and Artwork. Specifically, Rights Holder shall be responsible for and timely pay: (i) any royalties and other income due to artists, authors, co-authors, copyright owners, co-copyright owners, producers and other record royalty participants from sales or other uses of Digital Masters; (ii) all mechanical royalties payable to publishers and/or authors or co-authors of copyrighted musical compositions embodied in Digital Masters from sales or other uses of Digital Masters; (iii) all payments that may be required under collective bargaining agreements applicable to Rights Holder or third parties other than AirPlay Direct; and (iv) any other royalties, fees and/or sums payable with respect to the Rights Holder Content, Artwork, metadata and other materials provided by Rights Holder to AirPlay Direct.
- If there is a change of circumstance as a result of which Rights Holder reasonably believes that it no longer has the rights necessary to authorize AirPlay Direct and any broadcasters to use any Rights Holder Content or Artwork as provided for herein, or Rights Holder reasonably believes that AirPlay Direct's or its broadcasters continued use of any Rights Holder Content or Artwork will: (i) substantially harm Rights Holder's relations; (ii) violates the terms of any of Rights Holder's agreements with any applicable copyright owner, artist, producer or distributor; or (iii) be in violation of any law, rule or regulations, including without limitation, any copyright or other intelletctual property law, then Rights Holder shall withdraw such Right Holder Content or Artwork from the AirPlay Direct Site, and upon written notice to AirPlay Direct, withdraw any authorization for the broadcast or other use of such Rights Holder Content or Artwork. Following the receipt of written notice from Rights Holder, AirPlay Direct shall cease to offer such Rights Holder Content or Artwork for broadcast or other use and shall cause such cessation as soon as is commercially feasible after AirPlay Direct's receipt of such notice of withdrawal. Rights Holder shall use commercially reasonable efforts to obtain all rights and licenses to use such withdrawn Rights Holder Content or Artwork and shall promptly notify AirPlay Direct if and when such Rights Holder Content has been cleared and is again authorized for use or broadcast by AirPlay Direct and its broadcasters.
- Whether on your Account or in any other use of the AirPlay Direct Site, Rights Holder agrees not to say, perform, post, transmit, cause the display or performance of, or otherwise make available any Rights Holder Content or Artwork that: (i) contains nudity, depicts or suggests sexual, violent, or illegal conduct, or reasonably under the circumstances (including without limitation under the laws of any jurisdiction in the United States, whether or not such laws are applicable to the Rights Holder Content or Artwork in question) might be deemed obscene, pornographic, violent, or harmful; (ii) reasonably under the circumstances might be deemed threatening, abusive, harassing, tortious, vulgar, hateful, or racially, ethnically, or otherwise offensive or discriminatory; (iii) is illegal; (iv) is tortious, defamatory, libelous, invasive of another person's privacy, or violates another person's publicity rights; (v) bears any false, disguised, or misleading origin; (vi) contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, network, or other equipment; or (vii) is confidential and you do not have a right to disclose.
- Broadcasters who download music from AirPlay Direct are responsible for payment of any and all performance royalties to their performing rights organizations applicable to their particular geographic territory.
- You agree not use the AirPlay Direct Site to: (i) harass or advocate harassment of another person or entity; (ii) perform any activities that violate, intentionally or unintentionally, any applicable state, local, federal, or international laws or regulations promulgated by governmental agencies that have the force of law; (iii) provide resources to or otherwise support any organization(s) designated by the United States government as a foreign terrorist organization under section 219 of the Immigration and Nationality Act; (iv) impersonate any person or entity or misrepresent in any way your affiliation with a person or entity; (v) transmit unsolicited mass e-mails, "spim," or "spam;" (vi) make any unsolicited contact with any Member by any means, whether through the AirPlay Direct Site or otherwise, using information from a Member's Account, or collect or store any information about other users or Members, for any purpose other than in furtherance of a Service in the normal course of using the AirPlay Direct Site; or (vii) without the express written consent of AirPlay Direct, use the AirPlay Direct Site in any way or for any purpose that, in the sole discretion of AirPlay Direct, has or might have the effect of competing with or displacing the market for the AirPlay Direct Site. You further agree not to attempt to do, or assist anyone else with doing or attempting, any of the foregoing or any act that reasonably might lead to the foregoing.
- You also agree not do any of the following: (i) "frame" or "mirror" any portion of the AirPlay Direct Site , or access the AirPlay Direct Site in any way other than by the interfaces provided by AirPlay Direct; (ii) use any robot, spider, site search/retrieval application, other automatic device, or manual process, to "screen scrape," monitor, "mine," retrieve, index, or copy any portion of the AirPlay Direct Site (provided, however, that AirPlay Direct grants the operators of public search engines permission to use spiders to copy materials from the AirPlay Direct Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, and AirPlay Direct reserves the right to revoke these exceptions either generally or in specific cases); (iii) create Memberships or Accounts using any automated means, under false pretenses, or for any purpose other than in the normal course of using the AirPlay Direct Site; (iv) use any device, software, methodology, or routine to interfere with the proper working of the AirPlay Direct Site or servers, networks connected to the AirPlay Direct Site, or the use and enjoyment of the AirPlay Direct Site by any third party; (v) reverse engineer any of our technology, including without limitation any applets associated with the AirPlay Direct Site; (vi) access data of which you are not an intended recipient or log into a server or account on a network related to the AirPlay Direct Site that you are not expressly authorized to access; (vii) harvest or collect information about other AirPlay Direct Site users; (viii) restrict or inhibit any other person from using the AirPlay Direct Site, including without limitation by means of "hacking" or defacing any portion of the AirPlay Direct Site; (ix) use any portion of the AirPlay Direct Site as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (x) use the AirPlay Direct Site in any manner that could damage, disable, overburden, disrupt, or impair the AirPlay Direct Site, the Services, any AirPlay Direct server, or the network(s) connected to any AirPlay Direct server; (xi) in any other way interfere with or disrupt the proper operation of the AirPlay Direct Site or any other party's use and enjoyment of the AirPlay Direct Site; (xii) use the AirPlay Direct Site in any way or for any purpose that in a way that harms AirPlay Direct, any customer or advertiser of AirPlay Direct, or any other person; (xiii) engage in any activities related to the AirPlay Direct Site that are contrary to applicable laws or regulations; (xiv) disobey any applicable policies or regulations of networks connected to the AirPlay Direct Site; or (xv) attempt to do, or assist anyone else with doing or attempting, any of the foregoing or any act that reasonably might lead to the foregoing. You are granted a limited, nonexclusive right to create a hypertext link to the AirPlay Direct Site provided that such link is to the entry page (home page) of the AirPlay Direct Site or to a Account and does not portray AirPlay Direct or any of its products or services in a false, misleading, derogatory, or defamatory manner. You agree not to create any link to any other portion of the AirPlay Direct Site without written consent from AirPlay Direct and that this limited right may be revoked at any time for any reason whatsoever.
5.Use of Other Member's Rights Holder Content
(a).As between the parties, all right, title and interest in and to: (i) the Rights Holder Content; (ii) Artwork; (iii) the Digital Masters; (iv) the Clips; (v) all copyrights and other intellectual property rights embodied therein; and (vi) all materials furnished by Rights Holder, except as to any rights of AirPlay Direct (whether pre-existing or under this Agreement), shall remain the property of Rights Holder, it being understood that under no circumstances shall AirPlay Direct have any lesser rights than it would have as a member of the public.
(b).By submitting Rights Holder Content and Artwork to the AirPlay Direct Site, you hereby grant AirPlay Direct a worldwide, non-exclusive, royalty-free, sublicensable (and resublicensable through multiple levels), and transferable license to: (i) possess, use, reproduce, distribute, display, perform, and prepare derivative works of the Rights Holder Content and Artwork in connection with operation of the AirPlay Direct Site and AirPlay Direct's (and its successors' and affiliates') businesses; (ii) convert Rights Holder Content delivered by Rights Holder into broadcast quality Digital Masters; (iii) perform and make short clips of the Rights Holder Content available by streaming ("Clips") promote the delivery of applicable Digital Masters; (iv) use and authorize AirPlay Direct's broadcasters to use the names and likenesses of, and biographical material concerning, any Digital Master, artists, bands, producers and/or songwriters, as well as track and/or album name, and Artwork, in any marketing materials for the promotion and advertising of the applicable Digital Master which is offered for broadcast or other use under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the authorized exploitation of applicable Digital Masters); (v) at AirPlay Direct's discretion, market, promote, advertise and electronically fulfill and deliver Digital Masters, as individual tracks or entire albums, and associated metadata to broadcasters who may use such Digital Masters in accordance with usage rules set forth by AirPlay Direct and any other laws, rules, regulations and policies similar to those set forth by the music services; (vi) display and electronically fulfill and deliver Artwork to broadcasters for use solely in conjunction with the applicable delivered Digital Master; (vii) possess, use, reproduce, distribute, display, perform, and prepare derivative works of any Rights Holder Content and Artwork and information (other than personally-identifiable information) available at any time from your Account for promoting the AirPlay Direct Site on its home page and/or in any other media, and (viii) possess, use, and reproduce (but expressly not to distribute, display, perform, or create derivative works from) any Rights Holder Content, Artwork and metadata as may be reasonably necessary or desirable for AirPlay Direct to exercise AirPlay Direct's rights under the terms of this Agreement.
(c).You also hereby grant each user of the AirPlay Direct Site a non-exclusive license to access your Rights Holder Content and Artwork through the AirPlay Direct Site and to possess, use, reproduce, distribute, display and perform such Rights Holder Content and Artwork as permitted through the functionality of the AirPlay Direct Site and pursuant to this Agreement.
(d).The licenses granted by you in any given Rights Holder Content and Artwork pursuant to this section terminate within a commercially reasonable time after you remove such Rights Holder Content and Artwork from the AirPlay Direct Site or after your Membership terminates.
You acknowledge and agree that all right, title and interest in the Rights Holder Content and Artwork of any other Member is exclusively the property of that Member and/or his or her licensors and that except as otherwise provided in this Agreement such Member has granted you no license or rights whatsoever in or to any Rights Holder Content and Artwork except the right to view such Rights Holder Content and Artwork as is displayed in the Member's Account.
You agree not to modify, copy, distribute, transmit, sell, transfer, broadcast, circulate, display, perform, reproduce, publish, license, create derivative works from, or otherwise use in any other way, in whole or in part, any Rights Holder Content and Artwork of another Member other than in the normal course of using the AirPlay Direct Site or as otherwise allowed by this Agreement.
You also acknowledge and agree that, as between you and another Member, the names and logos and all related product and service names, design marks, and slogans of such other Member appearing on his or her Account or any Rights Holder Content or Artwork are the exclusive property of that Member and that such Member grants you no license or rights whatsoever therein except as otherwise agreed between you and such Member or as otherwise allowed by this Agreement.
AirPlay Direct respects the intellectual property of others, and we expect and require that our users do the same. You may not say, perform, post, transmit, cause the display or performance of, or otherwise make available any Rights Holder Content or Artwork that infringes any copyright, patent, trademark, trade secret, or other proprietary or intellectual property right of any party. AirPlay Direct reserves the right to terminate the Membership of infringers.
6.Digital Millennium Copyright Act.
7.Fees and Remittance.
- If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the copyright agent identified below with: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the AirPlay Direct Site; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Upon AirPlay Direct's receipt of a valid notice, the allegedly infringing material will be removed or disabled and your notice will be forwarded to the person allegedly infringing your copyrighted material. That person may then send us a counter notification. If AirPlay Direct receives a valid counter notification, you will be notified and provided with a copy of the counter notification received. Unless AirPlay Direct receives notice from you within 10 days that you have filed an action seeking an injunction against the alleged infringer, AirPlay Direct may choose to replace and/or re-enable access to the material.
- If you believe that you have received an erroneous notice that a work you posted infringes another's copyright, please provide the copyright agent identified below with: (i) your electronic or physical signature; (ii) a description of the work that you believe AirPlay Direct has removed or disabled access to in error; (iii) a description of where the work was located; (iv) your address, telephone number, and e-mail address; (v) a statement that you consent to the jurisdiction of Federal District Court for the judicial district where you live (or Davidson County, Tennessee if you live outside of the United States), and that you will accept service of process from the person who provided the allegedly erroneous notification; and (vi) a statement by you, made under penalty of perjury, that you have a good-faith belief that the work was removed or disabled as a result of a mistake or misidentification of the material. You should contact an attorney before sending a counter notification to us as sending such a notice in error may subject you to civil liability.
- The copyright agent can be reached as follows: Copyright Agent, AirPlay Direct, 24 Music Square West, Nashville TN 37203, 615-255-8649, 615-255-8651, firstname.lastname@example.org. The foregoing procedure is exclusively for providing notice that your copyrighted material has been infringed or that any material you have posted has been removed or disabled in error. Any other communications sent to the copyright agent will be discarded.
Viewing the public portions of the AirPlay Direct Site as a Visitor, registering as a Member, and having an Account are free. AirPlay Direct charges Members fees for providing enhanced or additional Services and for bandwidth and storage capacity utilized by the Member, as more specifically described on the AirPlay Direct Site. AirPlay Direct's fees may change from time to time, so you should check the AirPlay Direct Site regarding such fees regularly. All fees shall be at the then current prices. Upon registering for use of the Services, you must choose to pay either by direct charge to a credit or a debit card, and, in doing so, you authorize AirPlay Direct to charge your credit or debit card to pay for any charges that may apply to your account as they accrue. You must notify AirPlay Direct of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit AirPlay Direct from charging your account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by AirPlay Direct. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed, other than taxes based on AirPlay Direct's net income.
8.Representations and Warranties of the Parties.
- Rights Holder represents and warrants that it has full authority to enter into this Agreement and that it owns all patent, trademark, trade secret, copyright, and other intellectual property and proprietary rights in and to any and all Rights Holder Content or Artwork or that you have all the necessary rights, including all right, title and licenses to act on behalf of any and all owners of any right, title and interest in and to the Rights Holder Content and Artwork, including without limitation any and all licenses from any applicable performing rights companies to use and to authorize AirPlay Direct to use the foregoing in the manner contemplated by the AirPlay Direct Site and this Agreement.
- Rights Holder represents and warrants that its grant of rights, licenses and permissions herein for the Rights Holder Content and Artwork, and that the exercise of such rights, licenses and permissions by AirPlay Direct shall not violate or infringe the rights of any third party.
If Rights Holder provides a parental advisory warning about a particular sound recording in the Rights Holder Content, AirPlay Direct shall use or forward such parental advisory information to broadcasters. Rights Holder shall be responsible for determining parental advisory warning status and shall advise AirPlay as promptly as possible as to any change in the necessity of a parental advisory warning.
10.Links to Other Web Sites.
11.Interstate and International Use.
You consent to the collection and processing of personal information in the United States regardless of where you are located. You acknowledge that communications made using the AirPlay Direct Site may result in the transmission of data across state borders and/or international borders.
12.AirPlay Direct's Proprietary Rights.
You acknowledge and agree that all right, title and interest in the AirPlay Direct Site and all works of authorship and other materials contained on the AirPlay Direct Site, including without limitation any software, data, text, photos, pictures, graphics, images, audio and video clips, logos, icons, and links, and the selection and arrangement thereof, other than Content (collectively, the "AirPlay Direct Property") is exclusively the property of AirPlay Direct and/or its licensors and that we have granted you no license or rights whatsoever in or to any AirPlay Direct Property except as expressly set out in this Agreement. You may not modify, copy, distribute, transmit, sell, transfer, broadcast, circulate, display, perform, reproduce, publish, license, create derivative works from, or otherwise use in any other way for commercial or public purposes, in whole or in part, any AirPlay Direct Property, except for the purposes expressly provided in this Agreement, without AirPlay Direct's prior written approval. If you copy or download any AirPlay Direct Property, you agree that you will preserve any copyright notices or other such notices contained therein.
You also acknowledge and agree that the AirPlay Direct names and logos and all related product and service names, design marks, and slogans appearing on the AirPlay Direct Site, along with the names and trademarks or service marks of third parties referenced on the AirPlay Direct Site (collectively, the "Marks"), are the exclusive property of AirPlay Direct or such third parties and that we have granted you no license or rights whatsoever in or to any Marks. You agree not to use any Marks, including without limitation any use as or in metatags on other web sites, without our prior express written consent and/or the prior express written consent of the owner of the applicable Mark.
13.Effect of Termination.
In the event of termination of this Agreement or a Member's use of the AirPlay Direct Site or Services, all fees paid in advance by the Member shall be forfeited. The expiration or earlier termination of this Agreement shall not relieve Rights Holder or AirPlay Direct of their respective obligations to make any payments with respect to the sale or other use of Digital Masters in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement. Any terms of this Agreement which by their nature should survive shall survive the discontinuation, expiration or termination of this Agreement.
You agree to defend, indemnify, and hold AirPlay Direct and its directors, officers, employees, agents, and affiliates harmless from all claims, losses, damages, obligations, and costs (including without limitation reasonable attorney fees and expenses), arising from or related to: (i) your use of the AirPlay Direct Web Site; (ii) your breach of any provision of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property right, or privacy right; or (iv) any claim that any Digital Master, sound recording or Rights Holder Content, Artwork, metadata or any other materials provided or authorized by or on behalf of Rights Holder hereunder or AirPlay Direct's or its broadcasters use thereof violates or infringes the rights of another party. This defense and indemnification obligation will survive your use of the AirPlay Direct Web Site and any termination of this Agreement.
15.Exclusion of Warranties; Errors and Interruptions.
AirPlay Direct PROVIDES THE AirPlay Direct Site "AS-IS," "WITH ALL FAULTS," "AS AVAILABLE," and "WHERE AVAILABLE AND PERMITTED." AirPlay Direct DOES NOT MAKE ANY EXPRESS WARRANTIES OR GUARANTEES, AND TO THE FULLEST EXTENT PERMITTED BY LAW AirPlay Direct, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, WORKMANLIKE EFFORT, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT AirPlay Direct KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. AirPlay Direct does not guarantee or warrant that any file available for downloading from the webSite will be free from infection, viruses, worms, Trojan horses, or other code that manifests contaminating or destructive properties. AirPlay Direct makes a best effort to ensure only authorized and lawful downloads of its user content and is not responsible for unauthorized linking or access to any user content. In addition the use of software, bots or scripts to access files by bypassing the AirPlay direct user interface is strictly prohibited.
AirPlay Direct MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF any CONTENT available on the AirPlay Direct site OR THE CONTENT OF ANY SITES LINKED TO the AirPlay Direct Site AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF the AirPlay Direct Site, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM the AirPlay Direct Site, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH the AirPlay Direct Site BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, PERFORMED, OR OTHERWISE MADE AVAILABLE VIA THE AirPlay Direct SITE. AirPlay Direct DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE AirPlay Direct SITE OR ANY HYPERLINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND AirPlay Direct WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
You may have additional consumer rights under your local laws that this Agreement cannot change. You acknowledge that the operation of the AirPlay Direct Site will not be error free in all circumstances, that all defects in the AirPlay Direct Site may not be corrected, and that the operation of the AirPlay Direct Site may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of AirPlay Direct.
16.Limitation of Liability.
AirPlay Direct WILL NOT BE LIABLE IN ANY EVENT TO YOU (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER AirPlay Direct WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES OR THAT DIRECT DAMAGES WOULD NOT BE A SATISFACTORY REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, BUT THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT AirPlay Direct SHALL NOT BE LIABLE FOR ANY CONTENT UPLOADED TO THE AirPlay Direct SITE OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THESE LIMITATIONS APPLY EVEN IF THE REMEDY AVAILABLE TO YOU DOES NOT FULLY COMPENSATE YOU FOR YOUR LOSS OR FAILS OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
The AirPlay Direct Site is controlled and offered by AirPlay Direct from its facilities in the United States of America. AirPlay Direct makes no representations that the AirPlay Direct Site is appropriate or available for use in other locations. If you access or use the AirPlay Direct Site from other jurisdictions, you do so at you own volition and risk, and you are responsible for compliance with local law.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement and the remainder of this Agreement shall continue in full force and effect.
This Agreement is governed by Tennessee law, excluding Tennessee 's choice-of-law rules. THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS THE FEDERAL OR STATE COURTS SITTING IN NASHVILLE, TENNESSEE. YOU AND AirPlay Direct CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. You agree that the AirPlay Direct Site shall be deemed solely based in Tennessee and that the AirPlay Direct Site shall be deemed a passive website that does not give rise to personal jurisdiction over AirPlay Direct, either specific or general, in jurisdictions other than Tennessee. A printed version of this Agreement shall be admissible in judicial or administrative proceedings. Nothing in this agreement limits either party's ability to seek equitable relief. In the event of any litigation or other proceedings in connection with AirPlay Direct's enforcement of any provision of this Agreement or arising from or related to the Service the prevailing party shall be entitled to recover from the non-prevailing party all costs incurred, including staff time, court costs, attorney's fee and all other related expenses in such litigation or proceedings. In the event of a non-adjudicative settlement of litigation between the parties or a resolution of dispute by arbitration, the term "prevailing party" shall be determined by that same process.
Any claim related to this Agreement or the AirPlay Direct Site may not be brought unless made within the one-year period beginning on the date when the claim first could be filed. If it is not filed within such time, then that claim is permanently barred. This applies to you and your successors as well as to AirPlay Direct and its successors and assigns. Except as otherwise expressly provided in this Agreement, notice to AirPlay Direct shall be by U.S. mail or recognized national overnight delivery service at Attn: Legal Department, AirPlay Direct, LLC, 24 Music Square West, Nashville TN 37203, with a copy to Geoffrey P. Vickers, Esq., Baker Donelson Bearman Caldwell & Berkowitz, PC, Suite 800, 211 Commerce Street, Nashville, TN 37201. We do not accept e-mail notices. Notice to you may be made by e-mail to the email address you provide during the registration process, by U.S. mail or recognized national overnight delivery service to the address provided during the registration process.
Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose, and the rest of this agreement will not change.
Nothing in this agreement creates an agency, partnership, or joint venture. There are no other third party beneficiaries to this agreement.
AirPlay Direct may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not transfer to anyone else, either temporarily or permanently, any rights to use the AirPlay Direct Site or any part of AirPlay Direct Site except as otherwise expressly provided in this agreement.