PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING ANY SERVICES OFFERED BY BANDWITHRADIO, LLC. THIS AGREEMENT ("TERMS OF SERVICE") IS BETWEEN YOU (“YOU”), INCLUDING ALL REGISTRATION DATA YOU HAVE PROVIDED DURING THE REGISTRATION PROCESS, AND BANDWITHRADIO, LLC ("WE," "US," “OUR”, “BANDWITHRADIO” OR "BWR), A WISCONSIN CORPORATION. WE OWN AND OPERATE THE WEBSITES WITH THE URLS HYPERLINK HTTP://BANDWITH.ORG AND HYPERLINK HTTP://BANDWITHRADIO.COM (THE "WEBSITE", “WEBSITES”, “SITE” OR “SITES”). BY ACCESSING AND USING THE WEBSITE(S), YOU HEREBY AGREE TO THESE TERMS OF SERVICE.
1. EXPLANATION AND CHARGING POLICY:We offer streaming and downloading of recorded music to visitors to our website ("Website"). We may offer chat rooms focused on a variety of topics. You can access our Site through our online services. To download recorded music you will be required to obtain a password from us by setting up an account. Maintaining an account and searching the Website are free, however downloading music or subscribing to our streaming music site (http://bandwithradio.com) will require payment. Each download is charged at $1 per song or free (at the discretion of the musical artist, who contributes the work). Subscription to bandwithradio.com will cost you $3/month or $25/year.
2. REGISTRATION:If you become a subscriber and gain access to the services (the “Services”) offered by the Website, as part of the registration process, you will select a password. You are solely responsible for maintaining the confidentiality of any password you use to access the Website and agree that we will have no obligations with regard thereto.
You agree not to assign, transfer or sublicense your rights as a user to the Website. Only you and members of your immediate family are permitted to use your password. You are responsible for all uses of your password. Only one computer may be connected to our system at any one time with one password. Additionally, to the extent we are technologically able; we do not permit our site to be accessed by more than three (3) different computers using the same password within any twenty-four (24) hour period. You agree that with respect to any audio recordings you download, you are authorized to make a copy onto up to three (3) computer hard drives, up to three (3) MP3 players, and burn up to three (3) copies onto a CD for each password issued to you for your registered account. We authorize you to make these copies per audio recording you wish to download per calendar month.
To the extent we are technologically able; our intent is to prevent unauthorized copying. You do grant to us and authorize us to include with any streaming or downloading to you cookies, files, or other code that would cause your computer to notify us any time you make a copy of a stream or download and to prevent you from making more than the authorized number of copies. You also permit us to insert cookies, files, or other code that would prevent emailing of any of the audio recordings you download from us or other electronic transfer of those recordings such as over variations of pure and hybrid peer-to-peer networks. You agree that you will take no action to circumvent any copy management protections we encode into the streams or download.
3. YOUR RIGHTS:BWR grants you a non-exclusive, nontransferable, limited right to access, use and display this Website, the materials provided hereon and stream and download the audio recordings available on the site provided that you comply fully with these Terms of Service. You agree not to interrupt, or attempt to interrupt, the operation of the Website in any way. We cannot vouch for the accuracy, quality or good sense of messages posted here because we do not claim to read and evaluate them all. You must use your own common sense to judge, evaluate and decide about the usefulness of what you read here. We also do not vouch for the quality or the suitability of the audio recordings available here. You must use your own common sense to judge, evaluate and decide about the usefulness and appropriateness of what is available on this Website. Any ratings or reviews of the music are the opinions of the writer or poster only and not necessarily of BWR.
4. ACCESS AND USE CHARGES:You are not authorized to access our streaming music Website or download audio recordings from any of our sites unless you have first agreed to these Terms of Use including have given us your credit card number and authorized us to make download charges. If you wish to register to use our service, then you agree to provide us with accurate, complete and up-to-date information as requested ("Registration Data") including your legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). You may check, following help instructions, to determine whether your Registration Data is current and accurate, and, if not, to correct or update your Registration Data. Failure to comply with this provision (including, without limitation, falsification of any Registration Data) may, at our option, result in immediate suspension or termination of your right to access and use the Website without refund of any sums you may have paid as a subscriber. You agree to notify us promptly, following registration help instructions, in the event of any known or suspected unauthorized use of your registration, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information. In the event of a breach of security of which you are aware or should be aware, you will remain liable for any unauthorized use of your registration until you update your Registration Data. If your credit card expires, is canceled, is lost or is subject to use without your authorization, or if your registration is subject to use without your authorization, follow the registration "Help" instructions to update your Registration Data. Each download is charged at $1 per song or free (at the discretion of the musical artist, who contributes the work). Subscription to bandwithradio.com will cost you $3/month or $25/year. These prices may change through promotional agreements that reduce the monthly or yearly fees. We reserve the right to change these prices at any time, and do not provide price protection or refunds in the event of a price drop or promotional offering.
5. COPYRIGHT AND TRADEMARKS:You agree that all materials on the Website, including, without limitation, text, images, software, audio and video clips, databases, emails, and posted comments and reviews (collectively “Content") are owned or controlled by BWR and/or its licensors, which retain all right, title, and interest in and to the Content. Your posting of material on the Website or providing material to BWR (other than subject to a "Distribution Agreement" with us) to use on the Website will be deemed a non-exclusive, perpetual, unrestricted license by you to us of the material, including the right to reproduce, publish, distribute, perform, display, and transmit the material and to prepare derivative works, and you waive all rights of attribution and integrity with respect to the material.
The Website and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws. Post only material that is yours; that is, post only material to which you own the copyright or have the express written consent of the copyright holder. Direct quotes from published materials may not be posted without the written permission of the copyright holder. Material posted without permission of the copyright holder will, be removed if we learn of such posting without permission.
You may not download, display, reproduce, create derivative works from, transmit, sell, distribute, or in any way exploit the Website or any portion thereof for any public or commercial use without our express written permission. Notwithstanding the above, you may stream and download audio recordings as permitted in "2" and you may print or download one copy of the other materials or content on this Website onto up to three (3) separate computers in any given calendar month per password for your personal, non-commercial use, provided you keep intact all copyright and other proprietary notices. Systematic retrieval of data or other content from this Website to create or compile, directly or indirectly, a collection, compilation, database or directory without our written permission is prohibited.
In addition, use of the content or materials for any purpose not expressly permitted in these Terms of Use is prohibited. You agree not to use any trademarks, service marks, names, logos, or other identifiers of BWR or its employees, licensors, independent contractors, providers and affiliates (collectively “Affiliates") without our prior written permission or the permission of the relevant Affiliate.
In addition, you may not use our trademarks:
(a) in, as, or as part of, your own trademarks or those of any third parties;
(b) to identify products or services that are not those of BWR;
(c) in a manner likely to cause confusion; or
(d) in a manner that implies inaccurately that BWR sponsors or endorses or is otherwise connected with your own activities, products and services or those of third parties. BWR and other related marks used on this Website are service marks of BWR.
6. INTERACTIVE COMMUNICATION:BWR may make available to users of the Website, email notices, newsletters, chat rooms, message boards, bulletin board services or other interactive communication facilities by means of the Website (such facilities collectively referred to herein as the "Forums"). BWR cannot review all communications made on or through the Website. However, BWR reserves the right, but has no obligation, to monitor the Forums and edit, modify, or delete any materials which BWR in its sole discretion determines to violate this Agreement or to be in any other way offensive or contrary to any BWR policy.
7. WEBSITE COMMUNICATIONS:We expect you to use only language appropriate for general conversation, with no insulting, racist, obscene or sexually explicit remarks. You are solely responsible for the content of any transmissions you make to the site or any materials you add to the site (or that are made or added using your password) ("Communications"). You shall not upload to, or distribute to, or otherwise publish (or permit uploading, distribution or other publishing using your password) to the Website any Communication which
(i) is for commercial purposes or otherwise advertises or solicits for the sale of goods or services other than for BWR goods and/or BWR services;
(ii) constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
(iii) is obscene, indecent, pornographic, profane, sexually explicit, or abusive; (iv) constitutes or contains false or misleading indications of origin or statements of fact;
(v) slanders, libels or defames any person or entity;
(vi) causes injury of any kind to any person or entity;
(vii) infringes or violates the intellectual property rights, contract rights, or any other rights of any third party;
(viii) violates any applicable laws, rules, or regulations; or
(ix) contains software viruses or any other malicious code designed to interrupt, damage, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party.
Furthermore, you acknowledge that conduct prohibited in connection with the Forums include, but is not limited to, impersonation of other people and breaching or attempting to breach the security of the site. BWR and its Affiliates do not endorse or accept any Communications as its own or representative of its views. We reserve the right, though we do not have the obligation, to remove without notice any posting that we consider to be in violation of these Terms of Service or diminish the value of this online community. This includes postings which defame, insult or harass anyone or that are in any way abusive.
8. PUBLIC COMMUNICATIONS:You acknowledge and agree that any Communications made to or by means of any portion of the Website are public. You acknowledge that
(i) you have no expectation of privacy in any Communication and
(ii) no confidential, fiduciary, contractually implied or other relationship is created between you and BWR by reason of your transmitting a communication to any area of the Website.
By transmitting any Communication to the Website, you grant to BWR a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, distribute, display, reproduce, transmit, modify, edit, and otherwise exploit such communication, in all media now known or later developed. The foregoing grant shall include the right to exploit any proprietary rights in such communications, including, without limitation, any intellectual property laws under any relevant jurisdiction, and shall constitute a waiver of any proprietary rights, "moral rights," or any similar rights under any jurisdiction.
9. UNSOLICITED EMAIL:You agree not to use the Forums or any other area of the Site to send the same or substantially similar unsolicited electronic mail messages, whether commercial or not, to a large number of recipients. This prohibition includes sending unsolicited mass mailings from another Internet service that in any way involves the use of the Website or any equipment owned or operated by BWR in connection with the Website. A message is unsolicited if it is posted in violation of a USENET or news group charter and/or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's email address accessible to the public shall not constitute a request or invitation to receive messages.
10. "OPT-IN" FOR SPECIAL NOTICES:BWR may periodically make special offers or communications to Subscribers to the Website. If you would like to receive such offers or communications, you may "Opt-In" at any time by checking the "Opt-In" box that appears on the email notices page of the Website, and providing the email address you wish to use to receive such notices. If you change your mind at any time, you can reverse your option, or change your email address, using the same page. Selecting the "Opt-In" option constitutes acceptance of BWR's use of your email address to send you notices pertaining to BWR, its products and services, the Website, and related topics.
11. INFORMATION PROVIDED:You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Website is at your sole risk. BWR reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Website, or to deny access to the Website to anyone at any time. You acknowledge and agree that BWR is not responsible for any materials posted by users of the Website. You understand that by accessing the Website, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to access the Website at your sole risk and that BWR shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Prior to making any decisions based on information posted on the Website, you are advised to verify the information. Neither BWR nor its affiliates shall have any liability arising from your acts or decisions based upon the information provided on the Website.
12. ADVERTISING AND LINKS TO OTHER WEBSITES:The Website may contain links and pointers to other sites on the Internet that may be maintained by third parties. Such links do not constitute an endorsement by BWR of any third-party site or any materials contained therein. BWR does not control, and is not responsible for, the availability, accuracy, or currency of such third-party sites or any information, content, products or services accessible from such third-party sites. You acknowledge and agree that BWR is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that BWR shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that BWR shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Website.
13. AGE RESTRICTIONS:You represent and warrant to BWR that you are at least thirteen (13) years old and that you possess the legal right and ability to enter into this Agreement and to use the Website in accordance with this Agreement. Individuals under the age of 13 are prohibited from accessing the Website without verified parental consent furnished to BWR in accordance with the Children’s Online Privacy Protection Act of 1993. If you are 13 or older but under the age of 18, you must review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these Terms and Conditions.
14. PUBLISHING OF CONTENTYou hereby acknowledge and agree that you are solely responsible for all materials that you post or publish on the Website, including without limitation, information, code, data, text, software, music, sound, links, photographs, pictures, graphics, video, chat, messages, files and any other materials ("Content"). You represent, warrant and agree that no Content submitted by you or through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You represent and warrant that you have all legal rights necessary to publish any Content on the Website, or that you own such Content. You hereby acknowledge and agree that BWR shall, at all times, possess the right to refuse to include and/or to cause the removal of any or all of your Content for any reason and at its sole discretion. You hereby acknowledge and agree that BWR may, at its sole discretion, disclose Your Content in order to:
(i) comply with law enforcement, court orders, or the legal process; and/or
(ii) protect the rights and safety of individuals; and/or
(iii) settle disputes over intellectual property ownership.
BWR owns, protects and enforces copyrights in its own creative material and respects the copyright properties of others. Materials may be made available on the Website, or via the Website, by third parties not within the control of BWR. It is our policy not to permit materials known by us to be infringing to remain on this Website. You should notify us promptly if you believe any materials on this Website infringe a third party copyright. Upon our receipt of a proper notice of claimed infringement under the Digital Millennium Copyright Act ("DMCA"), we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue.
Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted in writing to the following Designated Agent for this Website:
Tony Vanden Bush 2208 Arizona Ave Iowa City, IA 52240 Telephone: 319-471-7803 Email: tony@bandwith.org15. USE OF WEBSITE
You understand that the Services and the Website are available for your personal use only. Your use of any Services that provide for or facilitate commercial transactions may be subject to additional terms and conditions. You agree not to harvest or collect email addresses or other contact information of other Website users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Website. You agree that you will not use the Website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Website.
In addition, you agree not to use the Website to:
(i) upload, post, email, transmit or otherwise make available any Content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable;
(ii) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(iii) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
(iv) use or attempt to use another user's account, without authorization from BWR, or create a false identity using the Services or the Website.
In addition, if you download or copy music files from the Website, you agree to use any music files that you download and copy in compliance with the following Usage Rules:
(i) Your use of the music files is conditioned upon your prior acceptance of these Terms and Conditions of Use;
(ii) You shall be authorized to use the music files only for personal, noncommercial use;
(iii) You may not combine a music file with any video or image file to create a multimedia work;
(iv) You may not use a music file as a musical "ringer" in connection with a phone or phone calls;
(v) The download and copy of a music file does not transfer to you any commercial or promotional use rights in the music file; and
(vi) You agree that your download and copy of music files constitutes your acceptance of an agreement to the Terms and Conditions of Use and these Usage Rules, and that any use of the music files other than in accordance with these Usage Rules may constitute a copyright infringement.
BWR reserves the right to modify these Usage Rules at any time.
16. INDEMNIFICATION:You hereby agree to indemnify, defend and hold harmless BWR from and against any and all liability and costs incurred by BWR in connection with any claim arising out of any breach or alleged breach of any of your obligations set forth herein. You shall cooperate as fully as reasonably required in the defense of any claim. BWR reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle my matter without the written consent of BWR.
17. DISCLAIMER OF WARRANTY:EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WEBSITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR NONINFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BWR MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE BY BWR. BWR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING FORUMS OR THE SERVER(S) ON WHITCH THE SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEVERTHELESS, BWR WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE SITE FREE OF VIRUSES, WORMS, TROJAN HORSES, AND ACTIVE X MALICIOUS CODE.
18. LIMITATION OF LIABILITY:USE OF THE SITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, COMMUNICATIONS, CONTENT, OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE SITE. UNDER NO CIRCUMSTANCES SHALL BWR, OR ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR BWR, BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR FEE-BASED SERVICES, EVEN IF BWR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BWR IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID BY YOU FOR ACCESS AND USE OF THE SITE. YOU HEREBY RELEASE BWR AND THE AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
19. TERMINATION:In addition to any other rights of the parties set forth herein, either you or BWR may cancel or terminate your access to the Website. BWR also reserves the right to restrict, suspend or terminate your access to the Website in whole or in part, without notice, with respect to any breach or threatened breach of any portion of these Terms of Service. If BWR terminates these Terms of Service based on a breach of any portion of these Terms of Service, BWR reserves the right to refuse to provide use and/or access to any Services to you in the future. You acknowledge that BWR shall not be liable to you or any third party for any termination of your access to this Website. If we terminate your service for cause or you terminate the service during a calendar month, we will not refund any sum to you for service for that month but will refund any sums you paid for any period beginning on the first day of the next month.
20. MODIFICATIONS:(a) To the Agreement: BWR has the right to modify these Terms of Service and any policies affecting the Website. Any modification is effective as of the beginning of the month following the posting to the Website or distribution via electronic mail or conventional mail. Your continued use of the Website following notice of any modification to these Terms of Service shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of BWR in providing the Website, including without limitation
(i) any change in the Content, or
(ii) any change in the amount or type of fees associated with the use or access of the Website, is to cancel your registration in accordance with the registration help instructions.
(b) To the Website: BWR has the right to modify, suspend or discontinue the Website or any portion thereof at any time, including the availability of any area of the Website. BWR may also impose limits on certain features and services or restrict your access to parts or all of the BWR Website without notice or liability. We do not purposely change your messages, but we may edit or move messages and/or edit its title in the interest of clarity and coherence of the ongoing conversation and may mistakenly change the concept in that way.
21. VIOLATIONS:If you see a message that you believe violates these Terms of Service, please notify us at contact@bandwith.org. If you believe that your work has been copied and is accessible on this Website in a way that constitutes copyright infringement, you may notify BWR. Click here for instructions.
22. GENERAL:These Terms of Service constitute the entire agreement between you and BWR with respect to the Website and supersede all prior agreements between you and BWR with respect to the Website. Failure by BWR to enforce any provision of these Terms of Service shall not be construed as a waiver of any provision or right. Please do not suggest or encourage illegal activity. (BWR will cooperate with law enforcement officials as appropriate.) Interpretation and enforcement of these Terms of Service shall be governed by the laws of the State of Wisconsin (excluding its choice of law rules). You consent irrevocably to personal jurisdiction in the federal and state courts of Wisconsin for any action arising out of or relating to your use of the Website. The federal and state courts located in or covering Eau Claire, Wisconsin, U.S.A. shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and nontaxable, and reasonable attorney's fees. Use of this Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions. You shall not use the Website in any manner contrary to local, state or federal law. BWR expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your access to the Website immediately upon your failure to comply with any such local, state or federal law. In the event that any portion of these Terms of Service is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. A printed version of this Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.