As of September 1, 2008
BitCrush.FM, Inc. (“BitCrush” or “Company” or “The Company”) owns and operates WeAreTheGuards.com (or “The Guards” also synonymous with “The Company”), which is an internet radio station music filter that allows its Members to hear and be exposed to new breaking music and utilize next level internet radio features, specific to it’s site(s). In the future users may be able to create unique personal profiles online and discuss and share music, indentify new breaking artists and connect with like minded individuals. The services offered by The Company include any The Guards -branded URL (the "The Guards Website"), and other features (for example future widget(s) and other tools in development embedded players), The Services also include filtered content, user ratings of songs, and/or unique applications offered from The Guards in connection with The Company’s business (collectively, the "BitCrush Services"). The Guards and BitCrush.FM, Inc.’s Services are hosted in the United States.
In order to participate in certain Company Services and functionality of the site, you may or may not be notified that you are required to download software (i.e. latest Flash Player, a P2P client) and/or agree to additional terms and conditions from The Company.
The Guards and parent company BitCrush.FM, Inc. expressly reserves the right in its sole discretion, to reject, refuse to post or remove any posting by you, or to deny, restrict, suspend, or terminate your access to all or any part of The Company Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. The Company also expressly reserves the right to deny, restrict, suspend, or terminate your access to all or any part of the The Company Services if The Company determines, in its sole discretion, that you have violated this Agreement or pose a threat to The Company and/or its Users.
You agree that data provided by you in regards to your personal rating of songs will collectively become part of the peer rating group and that this data that will be used and owned by The Company in perpetuity. You also agree that The Guards and BitCrush.FM, Inc. assumes no responsibility or liability of use of it’s services, including third party downloads that may or may not be needed to be downloaded for the functionality of The Guards.
In addition, you agree not to use The Company Service(s) or the Site to:
- use the Service or the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site(s), our Server(s) or our Content Delivery Network;
- use automated scripts or bots to collect information from or otherwise interact with the Service(s), our Server(s) our Content Delivery Network or the Site(s);
- upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
- register for more than one User account, register for a User account on behalf of an individual other than yourself, or register for a User account on behalf of any group or entity;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
- upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
- upload, post, transmit, share 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;
- intimidate or harass another;
- upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- use or attempt to use another's account, service or system without authorization from The Company, or create a false identity on the Service or the Site.
- upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of The Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose The Company or its users to any harm or liability of any type.
- You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through The Company Services.
- Engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
- Interfering with, disrupting, or creating an undue burden on the The Company’s Services or the networks or services connected to the The Company’s Services;
- Impersonating or attempting to impersonate another Member, person or entity
Security and Registration
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
The Guards, BitCrush.FM, Inc. Copyrights and Trademarks
The Services contain Content of The Guards and parent company, BitCrush.FM, Inc. ("The Guards and BitCrush.FM, Inc. Content"). The Guards and BitCrush.FM’s own content is protected by copyright, trademark, patent, trade secret and other laws, and The Company owns and retains all rights specific to it’s own Content within the The Guards and BitCrush.FM, Inc. Services. The Company hereby grants you a limited, revocable, nonsublicensable license to reproduce and display The Company Content (excluding any software code) solely for your personal use in connection with viewing the The Guards Website and using the The Company Services. The Guards, BitCrush.FM and other Company graphics, logos, designs, page headers, button icons, scripts and service names are registered copyrights, including The Companies song strip features including but not limited to ‘Find l Lyrics l Social l Video l Wiki’ configuration per song title. Company's copyrights may not be used and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part.
Copyright and Potential Complaints
We respect the intellectual property rights of others. The Guards and BitCrush.FM, Inc. is a licensed legal service with a blanket license and pays royalties to SoundExchange (handling master owners), ASCAP, BMI and SESAC (known as songwriters performing rights organizations). The Company also has and continues to acquire a large number of ‘direct licenses’ that we have negotiated directly with the artists, songwriter(s) and / or label. However, if you believe your work has been featured in a way that constitutes copyright infringement, please send The Guards and BitCrush.FM, Inc.’s Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the The Guards Services (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. The Company’s Copyright Agent for notification of claimed infringement can be reached as follows: email@example.com. Please note that if your music has been released The Company has a right to play the music under the blanket licenses of the following organizations: www.soundexchange.com, www.asacp.com, www.bmi.com, www.sesac.com. If you make music not already a member of one of these organizations we suggest you do so.
If we receive proper Notification of potential Alleged Copyright Infringement as described above, we will promptly remove or disable access to the allegedly infringing material in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent above.
1. Eligibility. Use of the The Company Services and registration to be a Free Visitor or a Member for The Company Services (“Membership”) is void where prohibited by specific country or licensing laws. By using The Company Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of The Company Services does not violate any applicable law or regulation.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the The Company Services or are a Free Visitor or Member. You may terminate your Membership at any time, for any reason, by following the instructions on your user Preference Settings page or by sending an email to firstname.lastname@example.org. The Company may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, this Agreement will remain in effect.
3. Fees. You acknowledge that The Company reserves the right to charge for its Services and to change its fees (if any) from time to time in its discretion. If The Company terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any). In addition, for example and sake of clarification, if your monthly membership fee is billed on January 8th and you decide to cancel your membership on January 9th, your access to membership will be in effect for that monthly accounting period, however no refund or prorated refund for that month will be available or credited.
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify The Company immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
6. Service Acknowledgement / Damages. The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. The Company also assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure or unauthorized access. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, hosting services, computer or mobile phone equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of The Company Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with The Company Services. Under no circumstances shall The Company be responsible for any loss or damage, including personal injury or death, resulting from use of the The Company Services. The Company Services are provided "AS-IS" and as available and The Company expressly disclaims any warranty of fitness for a particular purpose or non-infringement. The Company cannot guarantee and does not promise any specific results from use of The Company, The Guards and/or BitCrush.FM, Inc. Services. The Company does not represent or warrant that software, content or materials on the site, the service or any platform applications are accurate, complete, reliable, current or error-free or that the site or it’s servers, or any platform applications are free of viruses or other harmful components. Therefore, you should exercise caution in the use and downloading of any such software, content or materials and use industry recognized software to detect and disinfect viruses. Without limiting the foregoing, you understand and agree that if you download or otherwise obtain content, material, software, third party client applications (including any mobile client), data from or through the service or as a stand along third party that you do so at your own discretion and risk and that you will be solely responsible for your use thereof and any damages to your computer system, server(s), network(s), mobile device, loss of data or other harm of any kind that may result.
7. Reservation of Rights. The Company reserves the right to change any and all content, software and other items used or contained in the Site and any Services and Platform Applications offered through the Site at any time without notice. Reference to any products, advertisements, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Company.
8. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of law provisions. You and The Company agree to submit to the exclusive jurisdiction of the courts located within the State of California to resolve any dispute arising out of the Agreement or the The Company Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
9. Indemnity. You agree to indemnify and hold The Company, its subsidiaries, and
affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of The Company Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the The Company Services causes The Company to be liable to another. IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES,
10. Submissions. You acknowledge and agree that any questions, comments,
suggestions, ideas, feedback, song ratings or other information about the Site or the Service ("Submissions"), provided by you to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Definitions and Constructions
Unless otherwise specified, the terms "includes", "including", "e.g.,", "for example", and other similar terms are deemed to include the term "without limitation" immediately thereafter. Terms used in these Terms with the initial letter(s) capitalized will have the meaning attributed to them in these Terms.
This Agreement is accepted upon your use of the The Guards Website or any of The Company Services and is further affirmed by you becoming a Free Visitor or a Member. This Agreement constitutes the entire agreement between you and The Company regarding the use of the Services. The failure of The Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The Guards and The Guards Services are owned by BitCrush.FM, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.