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These terms of use are effective as of February 15, 2006

Introduction

Welcome to Perfomania! Perfomania.com is a music-oriented content and information management website that provides a service to artists, to artist management agencies, to independent and major record labels and to fans and listeners. Perfomania service is operated by the Perfomania network ("Perfomania"). When you use or access, or permit any other person(s) or entity to use or access the Perfomania web site (the "Web site") you signify that you have read, understand and agree to be bound by these Terms of Use (this "Agreement") and you agree to the terms and conditions of this Agreement. We may amend or change this Agreement (including applicable fees and service charges) at any time, in our sole discretion by posting the updated terms on the Web site without further notice. Please access and review this Agreement regularly. If you find the Agreement unacceptable to you at any time, please discontinue your use of the Web site. Your use of the Web site after we have made such changes available will be considered your agreement to the change. It is your responsibility to regularly review these Terms of Use.

Perfomania is an online application provider services website offering a variety of content, products and services. Perfomania hereby grants you a non-exclusive, limited, non-transferable, worldwide right to use the Service, solely for your own personal or internal business purposes. All rights not expressly granted to you are reserved by Perfomania and its licensors. You agree not to use the Perfomania for any other purpose, including commercial purposes, such as co-branding, framing linking, or reselling any portion of Perfomania without our prior written consent.

Eligibility

You must be thirteen years of age or older to register as a member of Perfomania or use the Web site. If you are under the age of 13, you are not allowed to register and become a member of Perfomania or access Perfomania content, features and services on the Web Site. We operate our network of sites in compliance with the Children's Online Privacy Protection Act of 1998, and do not permit registration by, and will not knowingly collect or use personally identifiable information from, anyone under 13 years of age. By using the Web site, you represent and warrant that you agree to and to abide by all of the terms and conditions of this Agreement. Perfomania may terminate your membership for any reason, at any time.

Registration and Privacy

Perfomania will require you to register and provide certain data. In registering and providing such data, you represent and warrant that: (a) the information about yourself is true, accurate, current, and complete (apart from optional items) as required by various Perfomania registration forms ("Registration Data") and (b) you will maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete or Perfomania has a reasonable ground to suspect that such information is untrue, inaccurate, not current or incomplete, Perfomania has the right to suspend or terminate your account and refuse any and all current or future use of the Web site. All Perfomania registrations become the exclusive property of Perfomania. Perfomania reserves the right to use and reuse all registration and other personally identifiable user information subject to Perfomania's Privacy Policy. You acknowledge receipt of Perfomania's Privacy Policy while on the Web site.

Member Conduct

You acknowledge and agree that all information, code, data, text, software, music, sound, photographs, pictures, graphics, video, chat, messages, files, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. You agree that no materials of any kind submitted through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You further agree not to harvest or collect email addresses or other contact information of members from the Web site 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 Web site or for any other purpose. You further agree that you may not use Web site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Web site.
This means that you, and not Perfomania, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Web site and related products and services. Perfomania does not control the user or third party Content posted via the Web site, and, as such, does not guarantee the accuracy, integrity or quality of such user or third party Content. You acknowledge and agree that by using the Web site, you may be exposed to Content that may be deemed offensive, indecent or objectionable. Nevertheless, you agree to use Perfomania at your sole risk. Under no circumstances will Perfomania be liable in any way for any user or third party Content, including, but not limited to, for any errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use of any such Content posted, emailed or otherwise transmitted via the Web site. As a general matter, Perfomania does not pre-screen user or third party Content posted on the Web site, although Perfomania reserves the right to do so. Perfomania does not guarantee that any screening will be done to your satisfaction or that any screening will be done at all. Perfomania reserves the right to monitor some, all, or no areas of the Web site for adherence to these Terms and Conditions or any other rules or guidelines posted by Perfomania. The Web site and any and all related products and services may only be used for the intended purpose for which such Products and Services are being made available. You further agree that you will not use Perfomania's Products and Services to:

  • Upload, post, email, otherwise transmit, or post links to any Content, or select any member or user name or email address, that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable.
  • Upload, post, email, otherwise transmit, or post links to any Content that promotes illegal activity, including without limitation the provision of instructions for illegal activity.
  • Collect or store personally identifying information about other users for commercial or unlawful purposes.
  • Employ misleading email addresses or falsify information in any part of any communication, including emails, transmitted through the Web site.
  • Upload, post, email, otherwise transmit, or post links to any Content that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships
  • Upload, post, email, otherwise transmit, or post links to any Content that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights ("Rights") of any party, or contributing to inducing or facilitating such infringement.
  • Upload, post, email, otherwise transmit, or post links to any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation, except in those areas that are designated for such purpose.
  • Use automated means, including additional computers, software and scripts, to enhance play in Perfomania promotions, increase the number of plays or downloads of songs of any particular artist on Perfomania or increase traffic to the Perfomania artist site of any particular artist.
  • Impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
  • 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;
  • Create and maintain a Perfomania artist site that (i) redirects to another web page or (ii) stores or hosts content for remote loading by other web pages. For example, you cannot create a Perfomania artist site, post pictures to the Perfomania artist site, and have other web pages call the Perfomania artist site to retrieve those pictures.
  • Create and maintain a Perfomania artist site that contains hyperlinks to content not permitted on Perfomania.
  • Purchase any goods or services that you are prohibited from purchasing or possessing by any law applicable to you in your jurisdiction. The responsibility for ensuring compliance with all such laws shall be the user's alone. By submitting an order to purchase goods or services, you represent and warrant that you have the legal right to purchase such goods or services.

You acknowledge and agree that Perfomania and its designees shall have the right (but not the obligation), in their sole discretion, to refuse to publish, remove, or block access to any Content that is available via the Web site and related products and services at any time, for any reason, or for no reason at all, with or without notice. Perfomania may also terminate access to, or membership in, Perfomania or any portion thereof, for violating these Agreement. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by or obtained through the use of Perfomania, including without limitation, information posted on users' websites.
You expressly acknowledge and agree that Perfomania may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms of Use; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Perfomania, its users and the public.
You acknowledge and agree that the technical processing and transmission of the products and services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You further acknowledge and agree that other data collected and maintained by Perfomania with regard to its users may be disclosed in accordance with Perfomania's Privacy Policy.

Proprietary Rights of Content on Perfomania

All content on Web site, including but not limited to design, text, graphics, other files, and their selection and arrangement (the "Content"), are the proprietary property of Perfomania or its licensors. All rights reserved. The Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without Web site's prior written permission. You may not republish Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation. Any other use of the Content is strictly prohibited.

All trademarks, logos, trade dress and service marks on the Web site are either trademarks or registered trademarks of Perfomania or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Perfomania.

License to Content Posted on the Site

By posting Content on Perfomania, you warrant and represent that you own the Content posted by you or otherwise have the right to grant the license set forth in this section, and that your Content does not violate the privacy rights, publicity rights, copyright rights or other intellectual property rights of any third party. You agree to pay for all royalties and fees owing to any person by reason of any Content you post on Perfomania. By posting Member Content to any part of the Web site, you automatically grant, and you represent and warrant that you have the right to grant, to Perfomania an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, perform, display, reformat, translate, excerpt (in whole or in part) and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.

You may remove your Member Content from the site at any time. If you choose to remove your Member Content, the license granted above will automatically expire.

Links to other websites and third party content

The Web site contains links to other web sites. Perfomania is not responsible for the content, accuracy or opinions express in such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked web site on Perfomania Web site does not imply approval or endorsement of the linked web site by Perfomania. If you decide to leave Perfomania Web site and access these third-party sites, you do so at your own risk.

Similarly, content hosted by Perfomania which is posted by third parties, Perfomania cannot and does not screen such web pages before they are made accessible to other members of Perfomania. Accordingly, neither Perfomania nor its licensors assume any responsibility for the content of any site linked to the Perfomania Web site or in any web page hosted for a third party within Perfomania Web site.

Member Profiles

Fans and Friends are invited to post content to their profile ("Profile") subject to the following limitations: (a) Perfomania may limit the amount of bandwidth dedicated to any account; and (b) Perfomania reserves the right to display advertising on Profile pages. Please consult the Perfomania Privacy Policy for special terms as they relate to Profiles. Profiles are governed by the entire Agreement and you are encouraged to review these terms carefully. Under no circumstances may Profiles be used to infringe the copyright or any other right of any person or entity. Perfomania reserves the right to modify or discontinue the Profiles service at any time, and you are encouraged to maintain back-up copies of the content you post on your Profile. The Profile service may only be used by people who are at least 13 years old.

By registering on Perfomania, you represent and warrant that all registration information you submit is truthful and accurate and that you will maintain the accuracy of such information. You further represent and warrant that you are 13 years of age or older and that your use of the Perfomania will not violate any applicable law. Your membership is for your sole, personal use, and you will not authorize others to use your account, including your Profile. You are solely responsible for all Content published or displayed through your account, and for your interactions with other Members. Please choose carefully the information you post on your Profile and that you provide to other members. The information provided by other Members in their Profiles may contain inaccurate, inappropriate or offensive material, products or services for which Perfomania assumes no responsibility or liability. Perfomania reserves the right, in its sole discretion, to reject, refuse to post or remove any Content posted by you, or to restrict, suspend, or terminate your access to all or any part of the Perfomania Web site at any time, for any or no reason, with or without prior notice, and without liability.

Member Disputes

You are solely responsible for your interactions with other Perfomania Members. Perfomania reserves the right, but has no obligation, to monitor disputes between you and other Members.

Storage

Many features of Perfomania store information on behalf of its Members. Perfomania reserves the right, in its sole discretion, to limit the amount of storage space available per user or to delete materials stored for an excessive period while the Member's account has been inactive.

Your liability for Unauthorized Transfer of Payments

If you permit other persons to use the "Refund" Service or your Password, you are responsible for any transactions they authorize from your Perfomania account. If you believe that your Password has been lost or stolen or that someone has transferred or may transfer money from your account without your permission, notify us immediately, by contacting unauthorized_refund@perfomania.com If you do not do so, you could lose all the money in your "My Sales" account. If you do not tell us within after you discover the loss or theft of your Password or that an unauthorized online transfer or payment has been made from your account Perfomania will not be able to stop the theft by re-issuing a new password for you.

We will not be liable, for example:

  • The Refund Service, your operating system or software was not functioning properly at the time you attempted to initiate such transfer or payment
  • Circumstances beyond our control, such as fires, floods, acts of God, power outages and the like.
  • The Payee or Recipient mishandles or delays processing or posting a payment or transfer sent by the Perfomania Refund Service.
  • If you have not provided us with complete and correct payment information for the Payee on a payment.

The list of examples set out in this paragraph is meant to illustrate circumstances under which Perfomania would not be liable for failing to make a transfer or payment and is not intended to list all of the circumstances where Perfomania would not be liable.

Under no circumstances will Perfomania be responsible for any loss or damage, resulting from anyone's use of the Web site or the Service. By using Perfomania Refund Services you are hereby agreeing to release Perfomania and its parents, subsidiaries, affiliates, officers, employees, and licensors from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to such disputes and/or to the Products and Services or to any disputes including but not limited to the use of the Refund, payment and transfer Services. You hereby agree to waive all laws that may limit the efficacy of such release.

Privacy

Perfomania cares about the privacy of its members. Click here to view the Web site's Privacy Policy.

Disclaimers

Perfomania is not responsible for any incorrect or inaccurate Content posted on the Web site or in connection with the Service, whether caused by users of the Web site, Members or by any of the equipment or programming associated with or utilized in the Service. Perfomania is not responsible for the conduct, whether online or offline, of any user of the Web site or Member of the Service. The Service may be temporarily unavailable from time to time for maintenance or other reasons. Perfomania assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user or Member communications. Perfomania is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any web site or combination thereof, including injury or damage to users and/or Members or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will Perfomania be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Web site or the Service, any Content posted on the Web site or transmitted to Members, or any interactions between users of the Web site, whether online or offline. THE WEB SITE, THE SERVICE AND THE CONTENT ARE PROVIDED "AS-IS" AND PERFOMANIA DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PERFOMANIA CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEB SITE AND/OR THE SERVICE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT PERFOMANIA DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL IN THE PRODUCTS AND SERVICES. PERFOMANIA DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. PERFOMANIA DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. PERFOMANIA MAKES NO WARRANTY REGARDING THE RELIABILITY OR ACCESSIBILITY OF MEMBER WEB PAGES OR ANY STORAGE FACILITIES OFFERED BY PERFOMANIA. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH MATERIAL.

Limitation on Liability

EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL PERFOMANIA BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ALSO LOST PROFITS ARISING FROM YOUR USE OF THE WEB SITE OR THE SERVICE, EVEN IF PERFOMANIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS AND SERVICES, FROM INABILITY TO USE THE PRODUCTS AND SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCTS AND SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE PRODUCTS AND SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE PRODUCTS AND SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE PRODUCTS AND SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE PRODUCTS AND SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS AND SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, PERFOMANIA. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SUCH LIMITATION OF LIABILITY SHALL ALSO APPLY TO ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF PROFILES, ARIST WEBSITES OR OTHER CONTENT STORED THROUGHOUT PERFOMANIA.UNDER NO CIRCUMSTANCES SHALL PERFOMANIA OR ITS LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.

Governing Law and Venue

If there is any dispute about or involving the Web site and/or the Product and Services, you agree that the dispute will be governed by the laws of the State of New York without regard to its conflict of law provisions. You also agree to the exclusive jurisdiction and venue of the courts of the state and federal courts of New York, New York and waive all defenses of lack of personal jurisdiction and forum non conveniens. Any cause of action by you with respect to the Web site and/or the Products and Services must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

Indemnity and Release

By using the Perfomania Web site you agree to indemnify and hold Perfomania, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including attorney's fees, made by any third party due to or arising out from your use of the Perfomania Web site, your use of the Products and Services, or your submission of ideas and/or related materials to Perfomania or from any person's use of any account or password you maintain with Perfomania, regardless of whether such use is authorized by you, or your violation of any law or the rights of a third party.

By using Perfomania, using the Products and Services, or submitting any ideas and/or related materials to Perfomania, you are hereby agreeing to release Perfomania and its parents, subsidiaries, affiliates, officers, employees, and licensors from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to such disputes and/or to the Products and Services or to any disputes regarding use of ideas and/or related materials submitted to Perfomania. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASES. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 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 IS KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

Other

These Terms of Use constitute the entire agreement between you and Perfomania regarding the use of the Web site and/or the Products and Services, superseding any prior agreements between you and Perfomania relating to your use of the Web site or the Products and Services. The failure of Perfomania to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.

Questions

Please visit our Help page for more information.

 
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