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you and us that arose prior to the date of such revision.
1.3 Evolving Nature of Fuzz. Fuzz is a new service and subject to change at
any time. We are continually looking to improve Fuzz but if you are at any time
dissatisfied with Fuzz, then your sole remedy is to discontinue use of Fuzz.However, we do want to hear from our users so do not hesitate to send us an e-
mail at [email protected] to let us know what you think.
1.4 Entity Subscribers. Presently, accounts are limited to individual users,
with a limit of one account per user. If you desire to open an account on Fuzz on
behalf of a company, entity or organization (each a "Subscribing Entity"), you
should send a request to [email protected]; by making such a request (or
creating an account without making such a request), you represent and warrant
that you: (i) are an authorized representative of that Subscribing Entity with the
authority to bind such entity to these Terms and (ii) agree to be bound by these
Terms on behalf of such Subscribing Entity and any additional terms (Ancillary
Terms) we may impose. Any decision to grant such a request shall be made in
our sole discretion. Ancillary Terms may not be the same for all Subscribing
Entities.
2. USE OF SERVICES
We may require that you agree to Ancillary Terms, or the terms of a Third-Party
Site in order to use particular features or functionality of Fuzz. Any such Ancillary
Terms or Third-Party Site terms will, unless otherwise expressly stated in such
terms, supersede these Terms in the event of a conflict, but only as to the
particular services with respect to which those terms relate. Any applicable
Ancillary Terms are hereby incorporated into and made a part of these Terms by
reference. You are solely responsible for your acceptance of and compliance
with terms imposed by any Third-Party Site; you should review such terms and
privacy policies before using such Third-Party Sites.
3. CHILDREN
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By using Fuzz, you affirm that you are at least 18 years of age. Additionally,
Fuzz is not intended for children under the age of 13. If you are under the age of
13, you must not use or access Fuzz.
4. SERVICE SECURITY
4.1 Personal Security. Be smart when using Fuzz or any Third-Party Sites.
You should not disclose personal information to strangers that would enable
them to locate you offline. This means you should not give out your name,
address, place of employment, school, etc., while communicating with others on
or through Fuzz. If you choose to share information about your use of Fuzz by
way of, or link your Fuzz account to, a Third-Party Site, you should be mindful of
who may have access to your activities through those Third-Party Sites. Others
may be able to identify your Fuzz account with an account on a Third-Party Site,
and potentially determine your actual name if the Third-Party Site requires or
encourages use of actual names as user names.
4.2 Service Security. You are prohibited from violating, or attempting to
violate, the security of Fuzz. Any such violations may result in criminal and/or
civil penalties against you. In addition, we may, in our sole discretion, terminate
your privilege to use Fuzz. We reserve the right to investigate any alleged orsuspected violations and, if a criminal violation is suspected, refer such
suspected violation to the appropriate law enforcement agencies and cooperate
fully with such investigations, including, but not limited to, the disclosure of any or
all of your activities on or related to Fuzz.
5. CONTENT SUBMITTED TO FUZZ
5.1 Content. You may associate text, video, audio, images or other content
(collectively, Content) with your Fuzz account by uploading, posting or
transmitting it to Fuzz (collectively, Posting). Posting includes indirectly Posting
to Fuzz via a Third-Party Site, or indirectly posting to a Third-Party Site via Fuzz.
a. All Content Posted by you, except for Internet Radio Content
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defined in 5.1(b) below, is referred to as your User Content.
b. Content consisting of sound recordings that is Posted by you for
use by you and/or other users in stations, playlists or other collections of sound
recordings for playback by Fuzz users as DMCA compliant internet radio isreferred to as Internet Radio Content.
5.2 User Content Responsibility.
a. By Posting User Content, you are granting us a license (the
Content License) in which, except as expressly provided in our Privacy Policy,
you hereby grant us an unrestricted, perpetual, assignable, sublicensable,
revocable, royalty-free license throughout the universe to reproduce, distribute,
publicly display, communicate to the public, make available, publicly perform
(including by means of digital audio transmissions) on a through-to-the-audience
basis, create derivative works from, and otherwise use and exploit (collectively,
"Use") all User Content you Post to Fuzz, through any media and formats now
known or hereafter developed to advertise, market, or promote Fuzz. You further
grant us a royalty free license to Use your name, image, voice, likeness, and any
photographs or artwork made available by or on your behalf through Fuzz in
conjunction with advertising, marketing, or promoting Fuzz. You further
represent and warrant that no payments of any kind will be due by us to you or toany third party for any User Content you Post to Fuzz.
b. If you want to revoke or terminate the Content License with respect
to some or all of your User Content, you can generally do so by deleting such
Content from Fuzz (see the rest of this paragraph (b) for important limitations on
this method). To request deletion of your entire user profile or account you must
also send an email to [email protected] stating your name, the username,
password and registered email address(es) associated with the profile, with the
words "Delete User Profile" in the subject line. Please note that if you
subsequently place User Content on the profile, this will void your deletion notice.
If we violate the Content License, you may either terminate the Content License
as described above or send a reasonably detailed email explaining the violation
to [email protected]. We will correct the violation within a reasonable time not
to exceed 30 days after receipt of proper notice. These are your exclusive
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remedies for a breach by us. We are not responsible for disputes between
users, including breaches of the Content License by users. Notwithstanding
anything else in these Terms, please note that terminating the Content License
does not automatically remove all of your comments or other Content
accumulated throughout Fuzz as a result of your participation in Fuzz; we retainthe Content License in such Content and will consider any requests to withdraw
such materials on a case by case basis, in light of the technical and other
resources necessary to effect such withdrawal, and other factors we deem
relevant.
c. You (and not us) are solely responsible for your User Content, and
for its accuracy, integrity, quality, lawfulness and merit. By Posting User Content,
you are making a legally binding promise (you are agreeing, representing and
warrantying) that it is truthful, accurate, not misleading, and offered in good faith,
and that you possess all the rights (including any clearances, licenses,
permissions or authorizations) necessary in order for you to post such User
Content and grant to us the Content License, and that your User Content does
not violate the privacy, publicity or intellectual property rights (including copyright)
of any other party. If any royalty or other payment becomes due to any party as a
result of us fully exercising our Content License (including your activities on
Fuzz), then you alone (and not us) shall be responsible for such payments. You
may not upload, post, publish or transmit any Content that is unlawful, fraudulent,libelous, defamatory, obscene, pornographic, profane, threatening, abusive, or
otherwise objectionable, including, without limitation, any Content that would
constitute illegal activity, give rise to civil liability, or violate any applicable local,
state, national or foreign law. You may not Post Content to Fuzz if you cannot
make all these promises and agree to all the provisions of this section 5
concerning such Content.
d. By uploading User Content to Fuzz you waive any rights to prior
inspection or approval of any marketing or promotional materials related to such
User Content. You further waive any and all rights of privacy, publicity, or any
other rights of a similar nature in connection with your use of Fuzz or any User
Content (or any portions thereof) you provide on or through Fuzz. To the extent
any moral rights are not transferable or assignable, you hereby waive and agree
never to assert any and all moral rights, or to support, maintain or permit any
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action based on any moral rights that you may have in or with respect to any
User Content you upload to Fuzz, during the term of these Terms. You expressly
release us and all of our agents, partners, subsidiaries, affiliates, licensees,
successors, and assigns from any and all claims, demands, liabilities, or causes
of action, whether now known or unknown, for defamation, copyrightinfringement, violation of moral rights, and invasion of the rights to privacy,
publicity, or personality or any similar matter, or based upon or relating to the
Use of your User Content.
5.3 Internet Radio Content Responsibility.
a. Fuzz allows you to create DMCA compliant streams of Internet
Radio Content. If you comply with all of the provisions of this Section 5, we will
pay the amounts due to SoundExchange and the Performance Rights
Organizations as a result of such use of Internet Radio Content (collectively,
Internet Radio Payments); if you violate any portion of this Section 5, we may in
our discretion require you to pay (or reimburse us for) such payments as they
relate to all Internet Radio Content Posted by you and all streams of collections
of Content assembled by you in the course of using Fuzz.
b. You represent, warrant and agree that any Internet Radio Content
Posted by you to Fuzz (1) will include the complete and correct title of the soundrecording (i.e., song name), featured recording artist name, and title of the album
released under the authority of the copyright owner; (2) contains no inaccurate or
misleading metadata; (3) comes from a lawfully obtained phonorecord and not
from any illegally acquired content (examples of illegally acquired content include
any content downloaded from unauthorized or illegal peer-to-peer filing sharing
services); and (4) has been publicly released in the United States under the
consent of the copyright owner (e.g., does not come from a bootleg or
unauthorized recording made available before the "street date" of release of the
content). For the avoidance of doubt, and without limiting the foregoing, we do
not require that you be the copyright owner, marketing label or other
representative of the Internet Radio Content you Post to Fuzz.
c. You represent, warrant and agree that you have not taken, and will
not: (1) take steps, either directly or indirectly, to intentionally defeat any
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technological measures implemented by us to ensure the compliance with any
laws or regulations, including, but not limited to, Sections 112 and 114 of the
United States Copyright Act, the regulations adopted pursuant thereto or other
provisions of the copyright laws of the United States (collectively, the Copyright
Laws); (2) interfere with the performance, specifications, functionality andbehavior of Fuzz, including interfering in any way with the ability of Fuzz to
comply with the Copyright Laws; (3) use any aspect Fuzz, any Third-Party Sites
or other methods (including without limitation email, voice and text messaging,
and Facebook direct messages) to provide advanced publication (as defined in
the Copyright Laws), or otherwise give advanced notice (to you or to another
User) of specific songs that will be accessible on Fuzz during a specific
timeframe, or to cause or predict (or enable another users to be able to cause or
predict) playback of a specific sound recording not Posted by you during a
specific timeframe; (4) use multiple accounts, or accounts shared by multiple
users, to accomplish any of the foregoing, or to defeat any of the playback or
other limitations of Fuzz.
5.4 Special Indemnification. In addition to and without limiting any of our
rights and remedies in Section 12 below, you represent, warrant and agree that,
in the case of a violation by you (whether acting directly or through your agents
or representatives) of any of the provisions of this Section 5, and notwithstanding
any other provisions of these Terms, you represent and warrant that you shalladvance all Expenses (as defined in Section 12 below) incurred by or on our
behalf in connection with any proceeding arising in whole or in part from such
violation (including without limitation a proceeding brought or joined by you)
within 21 days after the receipt by you of a statement or statements from us
requesting such advance or advances from time to time, whether prior to or after
final disposition of such proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by us and shall include or be
preceded or accompanied by a written undertaking by or on behalf of us to repay
any Expenses advanced if it shall ultimately be determined that we are not
entitled to be indemnified against such Expenses. You agree that any advances
and undertakings to repay pursuant to this Section 5.7 shall be unsecured and
interest free. You represent, warrant and agree that you shall not seek from a
court, or otherwise agree to, a bar order which would have the effect of
prohibiting or limiting our rights to receive advancement of expenses under this
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Section 5.7.
6. REGISTRATION
6.1 Log In Credentials. In order to use certain functionalities of Fuzz, such as
posting comments, you will have to register for an account on Fuzz or log in
using your Facebook or other Third-Party Site credentials. You are responsible
for maintaining the confidentiality of your log-in credentials in order to use Fuzz,
and are fully responsible for all activities that occur through the use of your
credentials. You agree to notify us immediately of any unauthorized use of your
log-in credentials or any other breach of security with respect to your account.
We will not be liable for any loss or damage arising from unauthorized use of
your credentials prior to you notifying us of such unauthorized use or loss of your
credentials.
6.2 Accuracy of Information. You agree to provide true, accurate, current, and
complete information about yourself as requested in any registration forms
required by us. You also agree to update the information about yourself
promptly, and as necessary, to keep it current and accurate. If messages sent to
an e-mail address provided by you are returned as undeliverable, we reserve the
right to terminate your account immediately with or without notice to you andwithout any liability to you or any third party.
7. USER TO USER COMMUNICATION SERVICES; SHARING OF
LISTENING HABITS; SHARING OF CONTENT OF STATIONS AND
DEDICATIONS
7.1 General. You may engage in online chats with other users of Fuzz
through the Third Party Site Facebook. Your use of the chat services of
Facebook, and any other services of Facebook, will be governed by any
Facebook terms of use or other policies as well as these Terms. Any violation by
you of any Facebook terms or these Terms may result in the termination of your
right to post messages through Facebook. We shall have no liability to you for
any termination of your right to engage in online chats through Facebook.
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7.2 Sharing of Listening Habits. By connecting your Fuzz account with a Third
Party Site such as Facebook you may choose to make your listening habits and
music likes and dislikes available through such Third Party Sites. By sharing
your listening information you will be making such information available toanyone who has access to your profile on a Third Party Site (e.g., your friends on
Facebook or every other user of the Third Party Site). The information you
choose to share through a Third Party Site shall be controlled through such Third
Party Site and subject to such Third Party Sites terms and policies. We are not
responsible, and shall have no liability to you, for any information you choose to
make available through a Third Party Site or for any failure of such Third Party
Site to protect the confidentiality of any information you share through such Third
Party Site. Notwithstanding the foregoing, we reserve the right to terminate your
use of Fuzz if you engage in any activities on a Third Party Site that reflects
poorly on Fuzz, including, but not limited to, through offensive, disparaging,
hateful or harmful comments about other users of Fuzz or the posting of
infringing, defamatory, or obscene content or comments.
7.3 Chat Postings. You should exercise caution, good sense and sound
judgment in submitting messages to be posted through a Third Party Site such
as Facebook. Think and read twice before you post anything. Once
something is posted online it may live in perpetuity, and messages posted todaycould be highly embarrassing or damaging to your credibility or reputation in the
future. You are responsible for any comments or materials you post on or
through any Third Party Sites, and assume all liability arising out of a post. We
make no representations and warranties with respect to the confidentiality of any
posts you make through Fuzz or on a Third Party Site.
7.4 License Grant for Postings. You hereby grant us a royalty free, perpetual,
irrevocable, assignable, non-exclusive license throughout the universe to Use
any messages you post through Fuzz, including on a Third Party Site (or any
portion thereof, including an edited version) alone or as part of other works in any
form, media, or technology whether now known or hereafter developed, and to
sublicense such rights through multiple tiers of sublicensees, with or without
attribution to you, to market and promote Fuzz.
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8. OTHER PROHIBITED ACTIVITIES
8.1 In using Fuzz, you agree not to:
(a) Upload or otherwise transmit to or through Fuzz any information or content
that infringes any patent, trademark, trade secret, copyright or other proprietary
rights of any party, including by incorporating any such material in User Content;
(b) Upload or otherwise transmit to or through Fuzz any unlawful, harmful,
harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise
objectionable material of any kind, or any material that can cause harm or delay
to Fuzz or computers of any kind;
(c) Upload, post or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, junk mail, spam, chain letters, pyramid
schemes or any other form of solicitation (commercial or otherwise);
(d) Create a false identify or impersonate another person or entity in any way;
(e) Restrict, discourage or inhibit any person from using Fuzz, disclose
personal information about a third person on Fuzz or obtained from Fuzz withoutthe consent of such person or collect information about users of Fuzz;
(f) Undertake, cause, permit or authorize the modification, creation of
derivative works, translation, reverse engineering, decompiling, disassembling or
hacking of any aspect of Fuzz or any part thereof, or attempt to do any of the
foregoing, except and solely to the extent permitted by these Terms, the
authorized features of Fuzz, or by law, or otherwise attempt to use or access any
portion of Fuzz other than as intended by us;
(g) Gain unauthorized access to Fuzz, to other users' accounts, names or
personally identifiable information, or to other computers or websites connected
or linked to Fuzz;
(h) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell
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or exploit any portion of Fuzz, use of Fuzz, access to Fuzz or content obtained
through Fuzz, for any purpose other than expressly permitted by these Terms,
including, by way of example and not limitation, by doing or engaging in any of
the following without our express written consent:
(i) Framing, embedding and/or passing off User Content obtained from Fuzz
in such a manner as to present them as originating from a source other than
Fuzz;
(ii) Copying, caching or reformatting any User Content for commercial
purposes in any manner whatsoever, whether by copying to physical or
electronic media for purposes of buffering delivery or converting transmissions
from Fuzz to alternative delivery formats;
(iii) Altering, defacing, mutilating or otherwise bypassing any approved
software through which Fuzz is made available; and
(iv) Using any trademarks, service marks, design marks, logos, photographs
or other content belonging to us or obtained from Fuzz.
(i) Post, transmit or otherwise make available any virus, worm, spyware or
any other computer code, file or program that may or is intended to damage orhijack the operation of any hardware, software or telecommunications equipment,
or any other aspect of Fuzz or communications equipment and computers
connected to Fuzz;
(j) Remove, disable, damage, circumvent or otherwise interfere with any
security-related features of Fuzz, features that prevent or restrict the use or
copying of any part of Fuzz or any content on Fuzz, or features that enforce
limitations on the use of Fuzz or any content on Fuzz;
(k) Use any scraper, spider, robot or other automated means of any kind to
access Fuzz, except and solely to the extent permitted by these Terms and the
features of Fuzz, deep-link to any feature or content on Fuzz, bypass our robot
exclusion headers or other measures we may use to prevent or restrict access to
Fuzz;
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(l) Interfere with or disrupt Fuzz, networks or servers connected to Fuzz or
violate the regulations, policies or procedures of such networks or servers;
(m) Violate any applicable federal, state or local laws or regulations or theseTerms; or
(n) Solicit, encourage or permit any persons to engage in, or assist any
persons in engaging in any, of the activities described above.
9. DISCLAIMER
YOU UNDERSTAND THAT WHEN USING FUZZ, YOU MAY BE EXPOSED TO
PRODUCTS, PHOTOGRAPHS, ALBUM ARTWORK, MESSAGES, AND USER
CONTENT FROM A VARIETY OF SOURCES, AND THAT WE ARE NOT
RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY,
USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR
RELATING TO SUCH MATERIALS. YOU FURTHER UNDERSTAND AND
ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO PRODUCTS,
PHOTOGRAPHS, ALBUM ARTWORK, MESSAGES, AND USER CONTENT
THAT ARE INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE,AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR
EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST US
WITH RESPECT THERETO. UNDER NO CIRCUMSTANCES WILL WE BE
LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY PRODUCTS,
PHOTOGRAPHS, ALBUM ARTWORK, MESSAGES, AND USER CONTENT,
INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR
OMISSIONS IN ANY USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF
ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PRODUCTS,
PHOTOGRAPHS, ALBUM ARTWORK, MESSAGES, AND USER CONTENT
POSTED, E-MAILED, UPLOADED OR OTHERWISE DISPLAYED,
PERFORMED OR TRANSMITTED VIA FUZZ. BY ACCESSING OR USING
ANY PRODUCTS, PHOTOGRAPHS, SKETCHINGS, ARTWORK, MESSAGES,
AND USER CONTENT TRANSMITTED ON OR THROUGH FUZZ, YOU WAIVE
ANY AND ALL CLAIMS AGAINST US THAT YOU MAY HAVE ARISING OUT
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OF OR RELATING TO SUCH PRODUCTS, PHOTOGRAPHS, ALBUM
ARTWORK, MESSAGES, AND USER CONTENT.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Generally. The content made available on or through Fuzz, including,
without limitation, any text, software, graphics, photos, sounds, music, videos
and interactive features, but excluding User Content, may be protected by
copyright or other intellectual property rights and owned by us or our third party
licensors. No material made available on or through Fuzz may be copied,
reproduced, republished, uploaded, posted, transmitted, or distributed in any way
without written permission of the copyright owner. Modification of materials
obtained from Fuzz, including, but not limited to, User Content, for any other
purpose, including, without limitation, any commercial purpose, is a violation of
our copyrights and other proprietary rights or those of our licensors, unless you
have obtained express written authorization to the contrary. All design rights,
databases and compilation and other intellectual property rights, in each case
whether registered or unregistered, and related goodwill are proprietary to us.
10.2 Trademarks. All trademarks, service marks, logos and trade names on
Fuzz, whether registered or unregistered, are proprietary to us or to othercompanies where so indicated. You may not reproduce, download or otherwise
use any such trademarks, service marks, logos or trade names without the prior
written consent of the appropriate owner thereof.
10.3 No Implied Rights. There are no implied licenses granted in these Terms.
11. LINKS TO THIRD PARTY SITES
11.1 As you use Fuzz you may notice links to Third-Party Sites. These links
are for convenience only. If you use these links, you will leave Fuzz. Certain of
these Third-Party Sites may make use of our proprietary intellectual property
rights (such as copyrights, trademarks, service marks, logos and trade names)
under license from us. We are not responsible for the availability or content of
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these Third-Party Sites or for any viruses or other damaging elements
encountered in linking to a Third Party Site, whether or not we are affiliated with
the owners of such Third-Party Sites. In addition, the provisioning of these links
to Third-Party Sites is not an endorsement or approval by us of the organizations
sponsoring such Third-Party Sites or their products or services. These Terms donot apply to Third-Party Sites, and you should review applicable terms and
policies, including any relevant privacy policies, associated with any Third-Party
Sites, applications, software or services.
11.2 YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR
ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF
ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY
SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY
ADVERTISING ON FUZZ.
12. INDEMNITY
You agree to indemnify, defend, and hold us (and our parent, subsidiaries,
affiliates, investors, sublicensees or any related companies, licensors and
suppliers, and their respective directors, officers, employees, agents,
representatives, contractors, and assigns) and other users of Fuzz who use anyUser Content you upload to or make available on Fuzz, harmless from all
damages, injuries, liabilities, costs, fees and expenses (including, but not limited
to, attorneys' fees and court costs) arising from or in any way related to: (1) your
use or misuse of Fuzz; (2) your User Content, including our or any user's Use of
your User Content consistent with these Terms; (3) your breach or other violation
of these Terms, including any representations, warranties and covenants herein;
or (4) your violation of the rights of any other person or entity, including, but not
limited to, claims that any User Content infringes or violates any third-party
intellectual property rights or other proprietary rights (collectively, Expenses).
Notwithstanding the foregoing, we reserve the right, at your expense, to assume
the exclusive defense and control of any matter for which you are required to
indemnify us if we, in our reasonable discretion, concludes that you are not
adequately protecting our interests or are incapable of protecting our interests,
and you agree to cooperate with our defense of these claims. You agree not to
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settle any matter without our prior written consent. We will use reasonable
efforts to notify you of any such claim, action or proceeding upon becoming
aware of it.
13. DISCLAIMERS
13.1 FUZZ, OUR PRODUCTS, USER CONTENT, AND ANY THIRD-PARTY
CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE
ON OR THROUGH OR IN RELATION TO FUZZ, ARE PROVIDED ON AN "AS
IS," "AS AVAILABLE," "WITH ALL FAULTS" BASIS WITHOUT
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
13.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO
APPLICABLE LAW, WE AND OUR AFFILIATES, PARTNERS, LICENSORS,
AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND
STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
US, OR FROM OUR EMPLOYEE OR REPRESENTATIVE OR THROUGH FUZZWILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WE
AND OUR AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT
WARRANT THAT FUZZ OR ANY PART THEREOF, OR ANY PRODUCTS OR
CONTENT OFFERED THROUGH FUZZ, WILL BE UNINTERRUPTED, OR
FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND
DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD,
OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH
FUZZ OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN
DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER
SYSTEM USED IN CONNECTION WITH FUZZ) OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
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14. LIMITATION OF LIABILITY
IN NO EVENT WILL WE (OR OUR OFFICERS, DIRECTORS, LICENSORS OR
SUPPLIERS) BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT,SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH: (1) THE USE OR ACCESS OF OR INABILITY TO USE
OR ACCESS FUZZ; (2) ANY PRODUCTS ADVERTISED, PROMOTED OR
DISPLAYED ON FUZZ; AND (3) CONTENT (INCLUDING USER CONTENT)
MADE AVALIABLE THROUGH FUZZ, IN EACH INSTANCE, INCLUDING,
WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION,
OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER
LEGAL THEORY, EVEN IF WE OR OUR LICENSORS OR SUPPLIERS ARE
EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL WE OR OUR LICENSORS OR SUPPLIERS BE LIABLE IN THE
AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE
GREATER OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES
YOU HAVE PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING
RISE TO THE LIABILITY.
15. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH
CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS
AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR
ALLOCATION OF RISK BETWEEN YOU AND US, AND ARE FUNDAMENTAL
ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US, OUR
LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY
LAW. YOU UNDERSTAND AND AGREE THAT WE WOULD NOT BE ABLE TO
OFFER FUZZ TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT
THESE LIMITATIONS.
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16. TERM AND TERMINATION
16.1 Term. These Terms, as amended, will be effective commencing with your
first use or registration for Fuzz and will remain in full force and effect throughout
your use of Fuzz.
16.2 Termination by us. We may terminate your use of Fuzz or any of our
features or services at any time and for any reason, with or without notice, for
conduct violating these Terms or upon our sole determination, without liability to
you. You hereby agree to our broad right of termination. You agree that if your
use of Fuzz is terminated pursuant to these Terms, you will not attempt to use
Fuzz under any name, real or assumed, and further agree that if you violate this
restriction after being terminated, you will indemnify and hold us harmless from
any and all liability that we may incur therefor. Upon our termination of your use
of Fuzz, we may, but shall not be required to, delete any of your User Content
and/or Internet Radio Content available on or through Fuzz and terminate your
access to such content if those materials remain on Fuzz, without any liability to
you.
16.3 Termination by You. You are free to terminate your use of Fuzz at any
time. You can simply choose to stop visiting or using any aspect of Fuzz. If you
wish to terminate your account on Fuzz, you may do so by sending an e-mail [email protected] or using any other account termination functionality that may
be offered through Fuzz.
17. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT
OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
17.1 We respect the intellectual property of others and take the protection of
copyrights and all other intellectual property very seriously, and we ask our users
to do the same. Infringing activity will not be tolerated on or through Fuzz.
17.2 Our intellectual property policy is to (a) remove material that we believe in
good faith, upon notice from an intellectual property owner or their agent, is
infringing the intellectual property of a third party by being made available
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through Fuzz, and (b) remove any User Content posted to Fuzz by "repeat
infringers." We consider a "repeat infringer" to be any user that has uploaded
User Content to Fuzz and for whom we have received more than two takedown
notices compliant with the provisions of 17 U.S.C. 512(c) with respect to such
User Content. We have discretion, however, to terminate the account of anyuser after receipt of a single notification of claimed infringement or upon our own
determination.
17.3 Procedure for Reporting Claimed Infringement.
(a) If you believe that any content made available on or through Fuzz has
been used or exploited in a manner that infringes an intellectual property right
you own or control, then please promptly send a "Notification of Claimed
Infringement" containing the following information to the Designated Agent
identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf
of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are
covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to
be the subject of infringing activity and that is to be removed or access to which
is to be disabled, and information reasonably sufficient to permit us to locate the
material;
(iv) Information reasonably sufficient to permit us to contact you, such as an
address, telephone number, and, if available, an email address at which you may
be contacted;
(v) A statement that you have a good faith belief that the use of the material in
the manner complained of is not authorized by the copyright owner, its agent, or
the law; and
(vi) A statement that the information in the notification is accurate, and under
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penalty of perjury, that you are authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. 512 to confirm
your obligations to provide a valid notice of claimed infringement.
17.4 Designated Agent Contact Information. Our Designated Agent for notices
of claimed infringement can be contacted at:
Via E-mail: [email protected]
Via U.S. Mail:
Feed Media Inc.
Mission Tower Two
3979 Freedom Circle, Suite 610
Santa Clara, CA 95054
Attn: Copyright Agent
17.5 Counter Notification.
(a) If you receive a notification from us that material made available by you on
or through Fuzz has been the subject of a Notification of Claimed Infringement,then you will have the right to provide us with what is called a "Counter
Notification." To be effective, a Counter Notification must be in writing, provided
to our Designated Agent through through U.S. Mail or email as set forth in
Section 17.4, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access
has been disabled and the location at which the material appeared before it was
removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith
belief that the material was removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled; and
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(iv) The subscriber's name, address, and telephone number, and a statement
that the subscriber consents to the jurisdiction of Federal District Court for the
judicial district in which the address is located, or if the subscriber's address is
outside of the United States, for any judicial district in which we may be found,and that the subscriber will accept service of process from the person who
provided notification under Section 17.3 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17
U.S.C. 512 to confirm the party's obligations to provide a valid counter
notification under the Copyright Act.
17.6 False Notifications of Claimed Infringement or Counter Notifications. The
Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the
Copyright Act (17 U.S.C. 512)] (1) that material or activity is infringing, or (2)
that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by
the alleged infringer, by any copyright owner or copyright owner's authorized
licensee, or by a service provider, who is injured by such misrepresentation, as
the result of [our] relying upon such misrepresentation in removing or disablingaccess to the material or activity claimed to be infringing, or in replacing the
removed material or ceasing to disable access to it.
17 U.S.C. 512(f).
We reserve the right to seek damages from any party that submits a notification
of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium
Copyright Act and the procedures set forth in this Section 17 should be sent to
the Designated Agent at [email protected] or to the postal address identified
above. Any other comments, compliments, complaints or suggestions about the
Site, the operation of Fuzz or any other matter should be sent to [email protected].
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18. PRIVACY
Use of Fuzz is governed by our Privacy Policy, which policy is hereby
incorporated into these Terms by reference.
19. JURISDICTIONAL ISSUES
The Site and Fuzz is controlled and operated by us from our offices within the
States of California. We make no representation that materials on Fuzz is
appropriate or available for use in other locations. Those who choose to access
or use Fuzz from other locations, including from outside the United States of
America, do so on their own initiative and are responsible for compliance with
local laws, if and to the extent local laws are applicable. Access to Fuzz from
jurisdictions where the contents or practices of Fuzz are illegal, unauthorized or
penalized is strictly prohibited.
20. DISPUTE RESOLUTION
20.1 Mandatory Arbitration. Please read this carefully. It affects your rights.YOU AND US, AND EACH OF OUR RESPECTIVE SUBSIDIARIES,
AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND
PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS
THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE
FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW,
FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO
THESE TERMS OR YOUR USE OF FUZZ. Arbitration is more informal than a
lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury,
allows for more limited discovery than in court, and is subject to very limited
review by courts. Arbitrators can award the same damages and relief that a
court can award. Please visit www.adr.org for more information about arbitration.
(a) Commencing Arbitration. A party who intends to seek arbitration must first
send to the other, by certified mail, a written notice of intent to arbitrate (a
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"Notice"), or, in the absence of a mailing address provided by you to us, to you
via any other method available to us, including via e-mail. The Notice to us
should be addressed to: Feed Media Inc., at the address set forth in Section 12
herein (the "Arbitration Notice Address"). The Notice must (i) describe the nature
and basis of the claim or dispute; and (ii) set forth the specific relief sought (the"Demand"). If we do not reach an agreement with you to resolve the claim within
30 days after the Notice is received, you or we may commence an arbitration
proceeding as set forth below or file a claim in small claims court. THE
ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS
COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY
PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "Rules"), AS
MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available
online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to
the Notice Address. If you are required to pay a filing fee to commence an
arbitration against us, then we will promptly reimburse you for your confirmed
payment of the filing fee upon our receipt of Notice at the Arbitration Notice
Address that you have commenced arbitration along with a receipt evidencing
payment of the filing fee, unless your Demand is equal to or greater than $1,000,
in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the Englishlanguage. A single independent and impartial arbitrator shall be appointed
pursuant to the Rules, as modified herein. You agree, and we agree, to comply
with the following rules, which are intended to streamline the dispute resolution
process and reduce the costs and burdens on the parties: (i) the arbitration shall
be conducted by telephone, online and/or be solely based on written
submissions, the specific manner to be chosen by the party initiating the
arbitration; (ii) the arbitration shall not require any personal appearance by the
parties or witnesses unless otherwise mutually agreed in writing by the parties;
and (iii) any judgment on the award rendered by the arbitrator may be entered in
any court of competent jurisdiction.
(c) No Class Actions. YOU AND WE AGREE THAT YOU AND WE MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL
CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
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PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER,
YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE
PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT
OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR
CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUNDTO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY
ARBITRATION SECTION SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the
arbitrator shall issue his or her decision within 120 days from the date the
arbitrator is appointed. The arbitrator may extend this time limit for an additional
30 days in the interests of justice (to a maximum of 150 days). All arbitration
proceedings shall be closed to the public and confidential and all records relating
thereto shall be permanently sealed, except as necessary to obtain court
confirmation of the arbitration award. The award of the arbitrator shall be in
writing and shall include a statement setting forth the reasons for the disposition
of any claim. The arbitrator shall apply the laws of the State of California in
conducting the arbitration. You acknowledge that these terms and your use of
Fuzz evidences a transaction involving interstate commerce. The United States
Federal Arbitration Act shall govern the interpretation, enforcement, and
proceedings pursuant to the Mandatory Arbitration clause in these Terms.
20.2 These Terms and your use of Fuzz shall be governed by the substantive
laws of the State of California without reference to its choice or conflicts of law
principles. Only if the Mandatory Arbitration clause is deemed to be null and
void, then all disputes arising between you and us under these Terms shall be
subject to the exclusive jurisdiction of the state and federal courts located in the
San Francisco, California, and you, and we, hereby submit to the personal
jurisdiction and venue of these courts.
20.3 Equitable Relief. The foregoing provisions of this Dispute Resolution
section do not apply to any claim in which we seek equitable relief of any kind.
You acknowledge that, in the event of a breach of these Terms by us or any third
party, the damage or harm, if any, caused to you will not entitle you to seek
injunctive or other equitable relief against us, including with respect to any
Content, and your only remedy shall be for monetary damages, subject to the
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limitations of liability set forth in these Terms.
20.4 Claims. You agree, and we agree, that, notwithstanding any other rights
the party may have under law or equity, any cause of action arising out of or
related to these Terms or Fuzz, excluding a claim for indemnification, mustcommence within one year after the cause of action accrues. Otherwise, such
cause of action is permanently barred.
20.5 Improperly Filed Claims. All claims you bring against us must be resolved
in accordance with this Dispute Resolution section. All claims filed or brought
contrary to this Dispute Resolution section shall be considered improperly filed.
Should you file a claim contrary to this Dispute Resolution section, we may
recover attorneys' fees and costs up to $5,000, provided that we have notified
you in writing of the improperly filed claim, and you have failed to promptly
withdraw the claim.
21. MISCELLANEOUS
21.1 Waiver. A provision of these Terms may be waived only by a written
instrument executed by the party entitled to the benefit of such provision. Our
failure to exercise or enforce any right or provision of these Terms will notconstitute a waiver of such right or provision
21.2 Severability. If any provision of these Terms shall be unlawful, void, or for
any reason unenforceable, then that provision shall be deemed severable from
these Terms and shall not affect the validity and enforceability of any remaining
provisions.
21.3 Assignment. These Terms, and any rights and licenses granted
hereunder, may not be transferred or assigned by you, but may be assigned by
us without restriction. Any assignment attempted to be made by you in violation
of these Terms shall be void. These Terms will be binding upon and inure to the
benefit of the parties hereto, and permitted successors and assigns.
21.4 No Agency. You agree that no joint venture, partnership, employment, or
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agency relationship exists between you and us as a result of these Terms or use
of Fuzz. You further acknowledge that by submitting Content, no confidential,
fiduciary, contractually implied or other relationship is created between you and
us other than pursuant to these Terms.
21.5 Survival. The provisions of these Terms that are intended to survive the
termination of these Terms by their nature will survive the termination of these
Terms, including, but not limited to, Sections 4 (Service Security), 5 (Materials
Submitted to Fuzz; License Grant from You to Us), 7.4 (License Grant for Chat
Room Postings), 8 (Other Prohibited Activities), 9 (Disclaimer of User Content),
10 (Intellectual Property Rights), 11 (Links to Third-Party Sites), 12 (Indemnity),
13 (Disclaimers), 14 (Limitation of Liability), 15 (Limitations; Basis of the
Bargain), 18 (Privacy), 20 (Dispute Resolution), and 21 (Miscellaneous).
21.6 Headings. The heading references herein are for convenience purposes
only, do not constitute a part of these Terms, and shall not be deemed to limit or
affect any of the provisions hereof.
21.7 Entire Agreement. This is the entire agreement between you and us
relating to the subject matter herein and supersedes all previous
communications, representations, understandings and agreements, either oral or
written, between the parties with respect to said subject matter. These Termsshall not be modified except in a writing, signed by both parties, or by a change
to these Terms made by us as authorized in these Terms.
21.8 Disclosures. The services hereunder are offered by Feed Media Inc.,
located at Mission Tower Two, 3979 Freedom Circle, Suite 610, Santa Clara
95054. You may contact us by sending correspondence to the foregoing
address or by e-mailing us at [email protected]. If you are a California resident,
you may have these Terms mailed to you electronically by sending a letter to the
foregoing address with your email address and a request for these Terms.
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