|
A. General
Information
1. Services. This Terms and
Conditions of Use Agreement (hereafter this "Agreement") sets forth
the general terms and conditions that apply to the use by you of the
MiBlueBook.com website ("the Site"), including the features and
services offered by us from time to time at or through the Site (collectively
with the Site, the "Services"). BY USING THE SERVICES, YOU AGREE TO
THE TERMS AND CONDITIONS CONTAINED HEREIN. This Agreement is a legally binding document
between you and Symphony Publishing, LLC ("Symphony"), and describes
your responsibilities in connection with your use of the Services and, among
other things, limits the liability of Symphony. Before using any of the
Services, please read all of this Agreement carefully. By accessing or using
any Services, you affirm that you are over 18 years of age and are otherwise
capable of forming legally binding contracts, and that you agree to be legally
bound and to abide by this Agreement. IF YOU ARE UNDER 18 YEARS OF AGE, OR ARE
OTHERWISE INCAPABLE OF FORMING LEGALLY BINDING CONTRACTS, OR DO NOT AGREE WITH
ANY PART OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.
2. Amendments. We reserve the right, exercisable
in our sole discretion, to change, modify, add to, subtract from, or otherwise
amend the terms and conditions of this Agreement at any time. Such changes,
modifications, or other amendments shall be effective upon notice to you
thereof, which may be given by means including, but not limited to, posting on
the Site, by electronic or U.S. mail, or by any other means by which you obtain
notice thereof. Except as may be otherwise expressly stated in any notice given
to you by us, all such amendments of this Agreement shall automatically become
effective upon the date such notice is given to you. This Agreement may not
otherwise be amended. Continued use of the Services by you constitutes your
binding acceptance of this Agreement, including any changes or modifications
made by us as permitted above. You agree to review the terms and conditions of
this Agreement periodically to become aware of such revisions and to review
your compliance with them. If at any time the terms and conditions of this
Agreement are no longer acceptable to you, you must immediately cease all use
of the Services. The right to access and use the Services is personal to you
and is not transferable to any other person or entity.
3. Additional
Agreements. The
Services include searching and accessing databases for used musical instrument
price and any other Services that may be added from time to time. Additional
terms and conditions of use applicable to your use of any other services
available at the Site from time to time are or may be posted in relevant areas within
the Site or may be agreed upon by you and Symphony in a separate written
agreement (e.g. Subscription Agreement; all such additional terms and
conditions, "Additional Agreements"). Together with this Agreement,
such Additional Agreements will govern your use of all services made available
by us to you. We reserve the right, exercisable at our discretion, to change or
discontinue without prior notice some or all of the Services we provide from
time to time at the Site, or change the applicable terms and conditions for
your use of such Services as set forth in the Additional Agreements.
4. Your
Account. Your
Account is identified by your chosen User Name (Login ID) and you are the only
party authorized to use your User Name. You are responsible for maintaining the
confidentiality of your registered account with us and any password(s) you have
chosen or we may issue to you in connection with your access and use of the
Services. No more than one person at any one time may access the Site or use
the Services under a single User Name; multiple concurrent users are not
permitted. You are responsible for all uses of your account, whether or not
actually or expressly authorized by you. If you believe that your account
and/or password(s) have been misused or compromised in any manner, please
contact us immediately at webmaster@symphonypublishing.com.
5. Fees. The fee schedule for the Services
are: (a) $ 9.99/mo. for unlimited price quotes, which will be automatically charged to your credit card
each month until such time as you cancel your account; (b) $ 99.00/year
which will be charged to your credit card upon commencement of your subscription
and then you will be notified by email when it is time to renew your membership
each year.
To cancel your account, go to www.MIbluebook.com and enter
your login information; once in your account, click "Payment Information"; in
the Payment Information area, click "Cancel Account"; then click "Continue" on
the following page to verify your account cancellation. You must cancel your
account BEFORE the next billing date. This date is displayed on the "Payment
Information" page as "Next Billing Date".
6. Equipment. You are solely
responsible for obtaining and maintaining all telephone, communications,
computer hardware and other equipment needed for access to and use of the
Services and all charges of any description arising from or relating thereto.
B. Information
You Provide to Us
1. Your
Information. The
term "Your Information" means collectively the following: (a) any
information or materials you provide to us in connection with our registration,
your use of any Services, or in email correspondence with us, (b) any
information or materials you provide to other users of the Site in connection
with your use of any Services, (c) any information or materials you provide to
third parties affiliated with Symphony in connection with your use of any
Services, and (d) any search terms or other instructions that you transmit to
our servers through a web browser. Except as may be otherwise expressly
provided to the contrary in this Agreement or the Additional Agreements, you
are solely responsible for Your Information, and we act at all times as a
passive conduit for your online distribution, communication, and/or publication
of Your Information.
2. Covenant
Regarding Your Information. You agree that Your Information: (a) will not be false, inaccurate,
frivolous, or misleading, (b) will not infringe any third party's copyright,
patent, trademark, trade secret, or other proprietary rights or rights of
publicity or privacy, (c) shall not violate any law, statute, ordinance, or
regulation (including without limitation those governing export control,
consumer protection, unfair competition, anti-discrimination, or false
advertising), (d) will not be defamatory, trade libelous, unlawfully
threatening, unlawfully harassing, or obscene, (e) will not contain any computer
viruses, worms, Trojan horses, time bombs, or other computer programs, scripts,
or instructions that are intended to damage or detrimentally interfere with the
operation or use of the Services, or to intercept or expropriate any
proprietary computer system information or other confidential data or personal
information relating to or arising out of the access or use of the Services, (f)
will not create any liability for Symphony or cause Symphony to lose (in whole
or in part) the services of its internet service providers or other suppliers
and business affiliates, (g) will not contain any links to or from other
information or websites for which you do not have the right to make or
reproduce such links, and (h) will not solicit or involve the purchase or sale
of counterfeit, stolen or illegal items, or solicit or commit any fraudulent
transaction or other form of criminal activity.
3. Updated
Information. If you
are a registered user of the Site, you agree to promptly update your account
registration information in order to keep it current, complete, and accurate.
4. Privacy
Policy. We will
only use Your Information in accordance with our Privacy Policy, available at www.MiBlueBook.com.
By agreeing to the terms and conditions of this Agreement, you also give your
consent to the way we may use your Information pursuant to the Privacy Policy.
If you have any questions not addressed in our Privacy Policy Document, you
should address them to webmaster@symphonypublishing.com.
C. Use of
Content
1. Copyright. You acknowledge
that the Services may contain information, text, software, photographs,
graphics, links and other material (collectively, the "Content") that
are protected by copyright, trademark or other proprietary rights of Symphony
or third parties. All Content used or made available through the Services is
copyrighted as a collective work and/or compilation of Symphony pursuant to
applicable copyright law. Symphony owns a copyright in the selection,
coordination, arrangement and enhancement of such Content, as well as in the
content original to Symphony. You agree to comply with any additional copyright
notices, information, or restrictions contained in any Content available on or
accessed through the Services. Symphony does not grant permission to users of
its Services to reproduce images of original works of art.
2. Limited
License. Subject to
your compliance with the terms and conditions of this Agreement (including
without limitation the restrictive terms and conditions set forth in this
Section), and except to the extent otherwise expressly provided in an
Additional Agreement between you and Symphony, you are granted a limited
non-exclusive, non-transferable, non-sub-licensable, and revocable license to
access the Services and/or Content only for your own personal or business use
but not for re-distribution or publication in any form.
You acknowledge that all text and software code included
with this product are provided for your personal use. In no case shall you
re-publish the listings in any form (including by display on another Web site)
without express written permission of Symphony and the owner of any database
included in the Services. You acknowledge that no more than ______ results will
be displayed for any search, regardless of the number of matching results
contained within the Content. Your right to use this product is limited to a
single user unless an additional agreement for network access has been signed
by both parties. You acknowledge that you are not permitted to sell or
otherwise dispose the software and that no rights granted hereunder may be
assigned or sublicensed by Licensee, any assignment or sublicense being void.
You may not modify, publish, transmit, transfer or sell,
resell, reproduce, create derivative works from, distribute, perform, display,
or in any way exploit or commercially use any of the Services and/or Content,
in whole or in part, except as expressly permitted in this Agreement or in an
Additional Agreement between you and Symphony. You acknowledge that you do not
acquire any ownership rights by accessing or downloading copyrighted materials.
You shall not store electronically any portion of any Services and/or Content.
You may not collect and use e-mail addresses of other users of the Site or
other user account information, listings, or perform any form of data
extraction or data-mining whatsoever. Except as expressly permitted by the
copyright laws, no copying, storage, redistribution or publication of any of
the Services and/or Content is permitted without the express permission of Symphony
or the owners of such Services and/or Content or their authorized persons, if
other than Symphony. You are responsible for complying with all applicable
laws, rules, and regulations regarding your use of any such downloaded Content.
Symphony reserves all rights in the Content and Services not expressly granted
hereunder.
3.
Trademarks. MiBlueBook.com
is owned by Symphony. ALL RIGHTS RESERVED. All other trademarks, service marks,
product names and company names or logos appearing on the Site are the property
of their respective owners. Any use of such trademarks, service marks, product
names and company names or logos, including the reproduction, modification,
distribution or republication without the prior written permission of the owner
of same, is strictly prohibited.
4. Beneficiaries. The foregoing provisions of this
Section C are for the benefit of Symphony, its subsidiaries, affiliates and its
third party content providers and licensors and each shall have the right to assert
and enforce such provisions directly or on its own behalf.
D. Site
Access; Interference with Services; Monitoring; Compliance with Laws
1. Site
Access. We do not
guarantee continuous, uninterrupted, or secure access to the Services, and
operation of the Site may be interfered with by numerous factors outside of our
control.
2. No
Interference. You
agree that you will not use any robot, spider, other automatic device, or
manual process to monitor or copy our web pages or the content contained herein
without our prior expressed written permission. You agree that you will not use
any device, software, or routine to interfere or attempt to interfere with the
proper working of the Site or the Services, or any transaction being conducted
on or through the Site or Services. You agree that you will not take any action
that imposes an unreasonable or disproportionately large load on the server
infrastructure of the Site.
3. Fraudulent
Activity. You may
not register to use any Services under a false name, or use an invalid or
unauthorized credit card in connection with any Services. You may not
impersonate any other user of the Services, or make use of another user's
password(s). Such fraudulent conduct is a violation of federal and state laws.
Fraudulent conduct may be reported by us to law enforcement authorities, and we
will cooperate with such authorities to ensure that violators are prosecuted to
the fullest extent of the law.
4. Monitoring. You agree that Symphony has the
right, but not the obligation, to monitor any form of user activity and/or
Content linked to or from or otherwise associated with the Services. We may
investigate any reported violation of our Agreement, Additional Agreements or
Site policies, and any user or other third party complaints relating thereto.
We may take any action that we deem appropriate in connection with any such
investigation without notice (including without limitation issuing warnings,
suspending or terminating Services and/or denying Site access). We may also
investigate, in our sole discretion, the use of any credit card by a user in
connection with the Services, and take such action as we deem necessary or
appropriate, including without limitation contacting the owner or user of such
card or canceling purchase orders placed by such owner or user.
5. Compliance with
Laws. The Services
may be used only for lawful purposes and in a lawful manner. You agree to
comply with all applicable laws, statutes and regulations regarding use of the
Services and any transactions that may be conducted by means of the Services.
E. Breach
of Agreement
Without limiting other remedies, we may immediately issue a
warning, temporarily suspend, indefinitely suspend or terminate your registered
user account and/or refuse to provide the Services to you: (1) if you breach
this Agreement or any of the Additional Agreements it incorporates by reference
or which you have separately entered into with Symphony; (2) if we are unable
to verify or authenticate any information you provide to us; or (3) if we
believe that your actions may cause legal liability for you, us, or our other
users, or other third party business affiliates.
F. Indemnity
You agree to indemnify, defend, and hold Symphony and its
affiliates, and their respective officers, directors, owners, agents,
information providers, and licensors (collectively, the "Company
Parties") harmless from and against any and all claims, liability, losses,
costs, and expenses (including attorneys' fees) incurred by any Company Party
in connection with any use or alleged use of the Service under your user name
or password by any person, whether or not authorized by you. Symphony reserves
the right, at its own expense, to assume the exclusive defense and control of
any matter otherwise subject to indemnification by you, and in such case, you
agree to cooperate with Symphony's defense of such claim.
G. Termination
of or Change in the Services
Symphony shall not be liable to you or to any third party
for any of the direct or indirect consequences of any modification,
malfunction, suspension, discontinuance of or interruption to or of any of the
Services. Symphony reserves the right, in its sole discretion, to restrict,
suspend, or terminate your access to all or any part of the Services at any
time for any reason without prior notice or liability. Symphony may change,
suspend or discontinue all or any aspect of the Services at any time, including
the availability of any feature, database, or Content without prior notice or
liability.
H. DISCLAIMER
OF WARRANTIES
NEITHER SYMPHONY NOR ANY PROVIDER OF THIRD PARTY CONTENT OR
THEIR RESPECTIVE AGENTS WARRANTS THAT THE SITE OR SERVICE WILL MEET YOUR
REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES SYMPHONY,
ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY
AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE, SERVICES OR THE CONTENT.
THE SERVICES AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS
AVAILABLE" BASIS. NONE OF SYMPHONY, THIRD-PARTY CONTENT PROVIDERS, AND
THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, WITH RESPECT TO THE SITE, SERVICES, OR ANY CONTENT. NEITHER SYMPHONY
NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR
DOWNLOADING THROUGH THE SITE OR SERVICES WILL BE FREE OF VIRUSES OR SIMILAR
CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR
COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. WITHOUT LIMITING ANY
PROVISION HEREIN, SYMPHONY MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER
SYSTEM CONFIGURATION WILL BE COMPATIBLE WITH THE SITE. IT IS YOUR SOLE
RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEM HAS THE APPROPRIATE
HARDWARE, OPERATING SOFTWARE, AND INTERNET BROWSER SOFTWARE VERSIONS TO ACHIEVE
THE SITE'S FULL FUNCTIONALITY AND CAPABILITIES. Some states do not allow the
disclaimer of implied warranties or limitation on how long an implied warranty
lasts, so the above disclaimer or limitation may not apply to you. You may have
other rights, which vary from state to state.
I. LIMITATION
OF LIABILITY
1. THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY
DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION,
INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER
VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS
TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS
BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY
ACKNOWLEDGE THAT SYMPHONY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR
ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY
FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
2. UNDER NO CIRCUMSTANCES WILL SYMPHONY OR ITS AFFILIATES, OR ANY OF ITS
SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR
ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH
EITHER THE CONTENT OR THE SERVICES, OR ANY LOSS OR DAMAGE CAUSED BY YOU BEING
EXPOSED TO INFORMATION CONTAINED ON THE SITE. IT IS YOUR RESPONSIBILITY TO
EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION,
ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE. PLEASE SEEK THE ADVICE
OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC
INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING OPINIONS OR ADVICE
REGARDING THE IDENTIFICATION, VALUATION OR CARE OF MUSICAL INSTRUMENTS.
3. NEITHER SYMPHONY, ANY THIRD-PARTY CONTENT PROVIDER NOR THEIR RESPECTIVE
AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS OR USE
THE SITE OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. Some states do not allow exclusion of implied warranties or limitation
of liability for incidental or consequential damages, so the above limitations
or exclusions may not apply to you. In such states, the liability of Symphony,
third party content providers and their respective agents shall be limited to
the greatest extent permitted by law.
J. Miscellaneous
1. Governing
Law. All disputes,
claims or controversies arising out of this agreement, or the negotiation,
validity or performance of this agreement, or the transactions contemplated
hereby shall be governed by and construed in accordance with the laws of the
state of Ohio without regard to its rules of conflict of laws. Each of the
parties hereto hereby irrevocably and unconditionally consents to submit to the
sole and exclusive jurisdiction of the courts of the State of Ohio and of the
United States of America located in Cuyahoga County, Ohio (the "Ohio
Courts") for any litigation among the parties hereto arising out of or
relating to this Agreement, or the negotiation, validity or performance of this
Agreement, waives any objection to the laying of venue of any such litigation
in the Ohio Courts and agrees not to plead or claim in any Ohio Court that such
litigation brought therein has been brought in any inconvenient forum or that
there are indispensable parties to such litigation that are not subject to the
jurisdiction of the Ohio Courts.
2. Headings. Section headings in this Agreement
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section
3. Severability;
Construction. If
any provision of this Agreement is held to be invalid or unenforceable, such
provision shall be struck and the remaining provisions shall be enforced. If
any inconsistency exists between the terms of this Agreement and any additional
terms and conditions of Additional Agreements (whether such Additional
Agreements are posted in electronic format on the Site or are separate written
agreements entered into between you and Symphony) such terms shall be
interpreted as to eliminate any inconsistency, if possible, and otherwise, the
additional terms and conditions of the Additional Agreements shall control.
4. Waiver. Symphony's failure
to exercise or forbearance from exercising any rights or remedies, or failure
to enforce or forbearance from enforcing, the strict performance of any
provision of this Agreement, will not constitute a waiver of Symphony's right
to exercise such rights or remedies or enforce such provision or any other
provisions of this Agreement in that or any other instance. Any waiver of any
provision of this Agreement by Symphony must be made in writing and signed by
an authorized representative of Symphony specifically referencing this
Agreement and the provision to be waived.
5. Assignment;
Third-Party Beneficiaries. This Agreement will inure to the benefit of Symphony's successors and
assigns. Except as set forth in this Agreement, this Agreement shall not
benefit or create any right or cause of action in or on behalf of any person
other than the parties hereto.
6. Notices. Except as otherwise provided
herein, any notices to be given pursuant to this Agreement may be given by
postal mail to Symphony Publishing, LLC 26202 Detroit Road, Suite 300,
Westlake, Ohio 44135 (in the case of us) or to the email address you provide to
Symphony during the registration process (in your case). Notice shall be deemed
given 24 hours after email is sent, unless the sending party is notified that
the email address is invalid. Alternatively, we may give you notice by
certified mail, postage prepaid and return receipt requested, to the address
provided to Symphony during the registration process in the event that an
address was supplied. In such case, notice shall be deemed given 3 days after
the date of mailing.
7. Survival. Section
C(1),(3),(4), Section D(3),(4), Section F, Section G, Section H and Section I shall
survive any termination of this Agreement, as well as any other provisions
which by their terms are intended to survive.
8. Integration. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
except for any Additional Agreements that you may have entered into with Symphony,
supersedes all previous written or oral agreements between the parties with
respect to such subject matter hereof.
This Terms of Use Agreement was last revised and posted on
the Site on January 9, 2006 to have effect from and after January 9, 2006.
|
