PLEASE READ THIS TERMS OF SERVICE CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE, INCLUDING MUSIC CONTENT AND OTHER SERVICES WE MAKE AVAILABLE THROUGH THE SERVICE. THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER CLICK “I AGREE”, WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN ARTIST, BAND, GROUP OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE ARTIST, BAND, GROUP OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING “I AGREE.” THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW.
We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and Da Farmacy that arose prior to the date of such modification. In the event of substantive changes to the terms of this Agreement, you will be notified by email. If any modification is unacceptable to you, your only recourse is to discontinue use of the Services. Your continued use of the Services following posting of a change notice or new agreement on the Site or notice to you via e-mail, will constitute your binding acceptance of the changes.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH Da Farmacy FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
If You Want to Use the Service,
Then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
Table of Contents
It is important that you read and understand these entire Terms before using the Service. To ease review, each section below includes a brief introductory summary and a link to the full explanation. Please note that the complete provisions, and not the headings or summaries shall govern. You can click on the headings and “More” buttons to be taken to the full explanation. Any capitalized terms have the meanings given to them where defined in the Terms.
Content, Ownership, Limited License and Rights of Others
We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations. Music Content (defined below) is subject to different terms as noted in this Section. More
Service and Content Use Restrictions
Your use of our Service is subject to various restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part. More
Terms Applicable to Purchases and/or Subscriptions
If you make a purchase through the Service (including subscriptions to the Service), these terms apply. More
You may have the opportunity to open, revise and close your accounts, subject to certain rules. We may offer you the ability to make choices regarding how and to whom some aspects of your account are used and seen, but these may not be completely effective. More
Content You Submit and Community Usage Rules
You grant us a broad license, which we may sublicense, to the content you submit which you represent. You have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. Use of our Service is subject to community usage rules and we have the right to manage our Service to keep its content appropriate. More
Procedure For Alleging Copyright Infringement
Users may not post content they do not own or control, and may be suspended or terminated if they do so. Copyright owners may give us notice of infringement by following specific instructions specifically addressed in this Section. More
Procedure For Alleging Infringement of Other Intellectual Property
You can also give notice of trademark and other infringements that you think occur on the Service. More
Notices and Questions
You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page of the Service, changing the date at the beginning of these Terms or by other reasonable means that we may elect, such as to the email address you provided. More
Linked-To Websites; Advertisements; Dealings with Third Parties
We are not responsible for third parties or their content, advertisement(s), apps, sites, products and/or services. We may make advertisements and third-party content or services available to you on or via our Service, which we do not control. Use caution when dealing with third parties. More
Updates to Terms
These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof. More
You agree to various other terms and conditions, which you should read here, regarding: (1) Da Farmacy’ Consent or Approval;(2) Relationship of the Parties; (3) Entire Agreement; (4) Binding Effect ; (5) Rights Cumulative; (6) No Third Party Beneficiaries; (7) Headings; (8) Assignment ; (9) Indemnity ; (10) Operation of Service; Availability of Products and Services; International Issues ; (11) Severability; Interpretation; (12) Communications; (13) Investigations; Cooperation with Law Enforcement; Termination; Survival; (14) Assignment; (15) No Waiver; and (16) Connectivity. More
Full Details of the Terms of Service
Content, Ownership, Limited License and Rights of Others
The Service contains a variety of: (i) materials and other items relating to Da Farmacy, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Da Farmacy (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing but excluding Music Content (defined below), collectively, “Content”).
Subject to your strict compliance with these Terms (including payment of a subscription fee) (defined below) and any Additional Terms, excluding Music Content (defined below), Da Farmacy grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Da Farmacy’ sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
Limited License to Content
The Service (including past, present, and future versions) and the Content are owned or controlled by Da Farmacy, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Da Farmacy or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Da Farmacy owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
Rights to Music Content
The Service contains a cloud-based technology platform (the “Platform”) that enables users (“Licensors”) of the Service to license to other users of the Service (“Licensees”), for agreed-upon compensation, certain sound recordings (each individually, a “Master” and collectively, the “Masters”) and underlying musical compositions embodied therein (each individually, a “Composition” and collectively, the “Compositions”) for the purpose of possible embodiment (“Sample”, “Sampling”) in other derivative master recordings (each, a “Derivative Master”) and underlying derivative musical compositions (each, a “Derivative Composition”). Masters, Compositions, Derivative Masters, and Derivative Compositions shall be collectively referred to hereunder as “Music Content”. Notwithstanding anything to the contrary contained herein, where applicable, one (1) or more separate agreement(s) between Licensors, on the one hand, and Licensees, on the other hand (each, an “Outside Agreement”), shall control the licensing of any Music Content licensed by Licensors to Licensees on the Service. For the avoidance of doubt, Da Farmacy does not grant any licenses or other rights to any users of the Service with respect to Music Content other than as specifically set forth hereunder, and any and all further rights shall be governed by the terms of Outside Agreement(s), if any.
Rights Granted to Da Farmacy by Licensors.
For good and valuable consideration, Licensors grant to Da Farmacy a license, for so long as Licensors choose to host the applicable Music Content (subject to the terms of any Outside Agreement[s]), to:
- Host, reproduce, distribute, make available for download and/or perform (publicly or otherwise) all Masters and Compositions on the Platform, including full-length versions of sound recordings (“Clips”) that can be used for promotional purposes as authorized herein and, if necessary, reproducing Your Content in new Physical Product;
- Publicly perform, publicly display, communicate to the public, and otherwise make available Your Content, and Clips, by means of digital audio transmissions (on an interactive or non interactive basis) through the Website, a Licensee website, or via a Da Farmacy Widget you or any person authorized by you may place on any website, to identify the availability of Your Content for license, sale or distribution and to promote Your Content, on a through-to-the-listener basis, without the payment of any fees or royalties to (i) the songwriters, composers, or music publishers owning any rights in and to Your Content; (ii) any performing artist(s) (including non-featured vocalists and musicians) on Your Content; (iii) any other person involved in the creation of or owning any portion of Your Content, including, but not limited to a record label, and (iv) any agents for any of the foregoing, including, without limitation, performing rights organizations (“PROs”) and unions or guilds, whether U.S.- based (such as ASCAP, BMI, SESAC, SoundExchange, AFTRA and AFM) or foreign (e.g., PRS for Music, PPL, CMRRA, CSI, GEMA, etc.);
- Distribute Your Content in accordance with any applicable Addendum;
- Place or embed Your Content in magazines, web sites, Da Farmacy’ advertisements, and any and all other media, whether now known or hereafter developed, but specifically excluding television and movies, to promote the Da Farmacy’ Service;
- Use and distribute Copyright Management Information as embodied in a Digital Master of Your Content;
- Use Your Content and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
- Reproduce, distribute, and publicly perform and communicate to the public Your Content (including Clips) as part of a downloaded program that may include multiple sound recordings and other content, commonly known as a “podcast;” and
- Authorize our Licensees to perform any one or more of the activities specified above or in an applicable Addendum;
- Grant to Licensees, subject to the terms of any Outside Agreement, the exclusive or non-exclusive right, privilege and license to download, copy, reproduce, Sample and otherwise edit, alter, couple, synchronize and/or otherwise embody the Masters (together with the applicable underlying including the Composition(s) embodied therein) into Derivative Masters and Derivative Compositions, subject to and in accordance with these Terms;
- Broadcast, stream and/or perform (publicly or otherwise) the Masters and/or Compositions in any and all media in connection with the advertisement and promotion of the Masters, Compositions and/or the Platform;
- Use, publish and display Licensor’s name, approved image, approved likeness and approved biographical materials (provided that any materials or information provided by Licensors are deemed approved) in any and all media in connection with the advertisement and promotion of the Masters, Compositions and/or the Platform; and
- License any of the rights granted to Da Farmacy hereunder to third parties as reasonably necessary to perform its obligations hereunder or to otherwise effectuate the purpose of these Terms.
The rights granted pursuant to this Section 1 with respect to each Master (and the applicable corresponding underlying Composition) shall be non-exclusive to Da Farmacy, subject to the terms of any Outside Agreement(s). For the avoidance of doubt, it is hereby acknowledged and agreed that the terms of any Outside Agreement(s) may continue for a duration longer than the rights granted to Da Farmacy hereunder.
Licensor hereby represents and warrants: (1) there are and there shall be no liens, encumbrances or other charges against the Master(s) and/or the Composition(s), including, without limitation, any Samples incorporated therein by Licensor and/or any third party engaged by Licensor; (2) no selections, materials, ideas, or other properties furnished by Licensor and embodied or contained in the Master(s) or the Composition(s), nor the exercise by Da Farmacy of any of its rights hereunder, will violate or infringe upon any law or statutory right of any third party; (3) Licensor has the full right, power and authority to agree to these Terms, grant the rights conveyed to Da Farmacy hereunder, and perform Licensor’s material terms and obligations hereunder; and (4) Licensor has not entered into and shall not enter into to any agreement with any third-party record company, distributor, music publisher, or any other person or entity that would conflict, inhibit, restrict or impair the rights granted to Da Farmacy hereunder or the performance of Licensor’s obligations under these Terms.
Licensee hereby represents and warrants that the use or other exploitation of Your Content, including, but not limited to, any musical works embodied in your sound recordings, by us and our Licensees as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
Licensee hereby represents and warrants that no selections, materials, ideas, or other properties furnished by Licensee and embodied or contained in any Derivative Master(s) or Derivative Composition(s), nor the exercise by Da Farmacy of any of its rights hereunder, will violate or infringe upon any law or statutory right of any third party, including without limitation copyright, trademark right or right of publicity or privacy.
Licensee hereby represents and warrants to the extent you are the songwriter of any or all of the musical works embodied in Your Content, whether in whole or in part (e.g., as a co‑writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any PRO, whether based in the United States or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to us and our Licensees for the public performance and communication to the public of Your Content, including as Clips, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the use of the musical works in Your Content when publicly performed, communicated or otherwise transmitted by Da Farmacy or its Licensees.
Licensee hereby represents and warrants you have not assigned any of the rights in an to the sound recordings embodied in Your Content to any third party (e.g., a record label) that obtained exclusive rights in and to such sound recordings.
Licensee hereby represents and warrants that if it is ever determined that you have acted contrary to any other agreements you have in place, you shall cause any and all of your respective PRO (Performing Rights Organizations), CMOs (Collective Management Organization), publishing administrators, agents, Entities, their parent company and subsidiaries, or their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns, as applicable, to license to Da Farmacy and/or Da Farmacy’ publishing administrators, agents, Da Farmacy’ parent company and subsidiaries, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns the rights in any of the Composition pursuant to the terms and conditions of this agreement. Licensee shall issue or shall cause the necessary above parties in this paragraph) to issue a non-exclusive, worldwide, and perpetual royalty-free licenses for use of the Composition in connection with any Master(s), Composition(s), Derivative Master(s) and/or Derivative Composition(s) hereunder, including, without limitation, any unauthorized commercial exploitation thereof.
Licensor and Licensee hereby forever release and covenant not to sue Da Farmacy and/or any of the Da Farmacy Parties from any and all claims arising out of or in connection with any act or omission of any third party in connection with any Master(s), Composition(s), Derivative Master(s) and/or Derivative Composition(s) hereunder, including, without limitation, any unauthorized commercial exploitation thereof.
YOU UNDERSTAND AND AGREE THAT Da Farmacy IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN LICENSORS AND LICENSEE. YOU ACKNOWLEDGE THAT UNLESS EXPRESSLY SET FORTH ON THE SERVICE AS PART OF A SUBSCRIPTION OFFERING, Da Farmacy DOES NOT LICENSE MUSIC CONTENT DIRECTLY OR FUNCTION AS MUSIC LICENSING COMPANY. THE SERVICE MAY BE USED BY LICENSORS AND LICENSEES TO LICENSE OR OBTAIN A LICENSE TO MUSIC CONTENT FOR DEVELOPMENT OF DERIVATIVE COMPOSITIONS, BUT YOU AGREE THAT Da Farmacy HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY MUSIC CONTENT LICENSED THROUGH THE USE OF THE SERVICE, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. Da Farmacy HAS NO CONTROL OVER THE CONDUCT OF LICENSORS, LICENSEES, AND OTHER USERS OF THE SITE AND SERVICE OR ANY MUSIC CONTENT, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. Da Farmacy DOES NOT GUARANTEE THE MUSIC CONTENT MADE AVAILABLE ON THE SERVICE BY LICENSORS IS CLEAR FROM A RIGHTS USE PERSPECTIVE AND SUCH MUSIC CONTENT MAY INFRINGE THIRD PARTY RIGHTS. IT IS SOLELY A LICENSEE’S RESPONSIBILITY TO DETERMINE IF ANY MUSIC CONTENT WILL MEET THE LICENSEE’S NEEDS AND EXPECTATIONS. Da Farmacy WILL NOT PARTICIPATE IN DISPUTES BETWEEN LICENSORS AND LICENSEES. Da Farmacy SHALL NOT HAVE ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO ANY TRANSACTIONS OR RELATIONSHIP BETWEEN LICENSORS AND LICENSEES.
The term of this Agreement will commence on the Effective Date and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a) Da Farmacy, may be sent to you at the last e-mail address you provided to Da Farmacy and (b)you to Da Farmacy, must be sent only to the following e‑mail address: [email protected]Da Farmacy.com with the following information: (a)your username; (b)the e‑mail address associated with your Account; (c)all album titles for which you are requesting termination; and (d)which Services you are terminating (e.g., Marketplace Services, Digital Distribution, Publishing Administration and/or Sync Distribution). Any termination notice provided by you pursuant to this section shall be permanent and irreversible. Notwithstanding anything to the contrary herein, Da Farmacy, may at any time in its sole discretion, with or without notice to you: (i)suspend or limit your access to or your use of the Services and/or (ii)suspend or limit your access to your Account.
Da Farmacy is not responsible and has no liability for any delays of our Licensees in removing Your Content from any websites or services owned or operated by such Licensees. You shall remain solely responsible for enforcing the removal of Your Content from our Licensees’ websites and services in the event such Licensees fail to remove Your Content following receipt of a Takedown Notice or following the termination of any rights granted to such Licensees by Da Farmacy; provided, however, that Da Farmacy may, in its sole and absolute discretion, continue to assist you to effectuate the removal of Your Content from Licensees’ websites and services. Da Farmacy may, but need not, provide you with notice in the event Da Farmacy terminates or allows to expire any authorizations previously granted to a Licensee for the distribution of Your Content. Nothing in this Agreement shall limit any remedies you may have at law or in equity against any Licensee that is using Your Content in violation of the terms of any license granted to such Licensee by you or Da Farmacy.
The expiration or termination of the Agreement will not relieve either you or us from our respective obligations incurred prior to the effective date of your termination of the Agreement. In addition, provisions of this Agreement intended to survive the termination of this Agreement shall survive termination, including, but not limited to, the Indemnification, Disclaimers, Limitation of Liability; Basis of the Bargain, and General Provisions.
Payments to You
Pricing the Sale of Your Content.
Except as otherwise set forth in an Addendum, you will have the discretion to set the pricing for the sale of Your Content on the Website. Notwithstanding the foregoing, Da Farmacy and its distributors and partners may set pricing differently for third-party websites than for the Website, including, by way of example and not limitation, to cover additional costs or to provide discounts for promotions. Da Farmacy reserves the sole and exclusive right to set the pricing for any digital audio transmissions of Your Content, whether on an interactive or non-interactive basis, provided that Your Content will be priced the same as all other content on the Service licensed by Da Farmacy for interactive or non-interactive digital audio transmissions. You will also be subject to additional set up fees and charges as more fully explained on the Website, including, but not limited to, fees for Da Farmacy administering mechanical royalties for the reproduction and distribution of musical works (as applicable), as such fees and charges may be updated by Da Farmacy from time to time, and you are responsible for reviewing those fees and charges. Your acceptance of this Agreement is an acceptance of the Da Farmacy’ fees and charges.
Da Farmacy, may, but need not, audit the books and records of Licensees and may accept any representations made in a Licensee accounting statement delivered to Da Farmacy as true and complete. Da Farmacy shall have no liability to you for failure to audit or investigate any accountings rendered to it by any Licensees. You hereby authorize Da Farmacy to offset against any amounts owed to you pursuant to this Agreement any amounts that you may owe to Da Farmacy, whether under an indemnification provision or for costs, expenses, and deductions authorized in this Agreement.
Audits You may, but not more than once a year, at your own expense, engage a Certified Public Accountant (“CPA”) to examine those books and records directly related to the sale or other licensed uses of Your Content, as provided in this Section 7(c), only. You may have your CPA make those examinations only for the purpose of verifying the accuracy of the statements sent to you. All such examinations will be in accordance with generally accepted accounting principles (“GAAP”) procedures and regulations. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and only at the place where such books and records are maintained in the ordinary course of business. You must provide us with thirty (30)-days written notice prior to commencing an audit and must identify the name, address, telephone number, and email address of the CPA conducting the audit on your behalf. You may not engage the CPA on a contingent fee basis (i.e., your CPA must be paid on a flat fee or time-based basis). We may postpone the commencement of your CPA’s examination by notice given to you not later than five (5) days before the commencement date specified in your notice. In the event of any postponement initiated by us, the running of the time within which the examination may be made will be suspended during the postponement. If your CPA’s examination has not been completed within three (3) months from the time commenced, then we may require you to terminate the audit upon seven (7) days’ notice, which notice may be given at any time. We will not be required to permit the CPA to continue any examination after the end of that seven (7)‑day period. Your CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of Your Content for which Da Farmacy has actually received payment. Your CPA may act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination on your behalf will not be knowingly released, divulged, published or shared with any other person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may not share the results of the examination conducted on your behalf with any third party without our express written permission.
Objection to Accountings.
If you have any objections to a Da Farmacy accounting statement made available to you, you agree that you shall give us specific notice of that objection, including a copy of your CPA’s analysis of the accounting statement, and your reasons for it within eighteen (18) months after the date we send or make that statement available to you. Each statement shall become conclusively binding on you at the end of that eighteen (18)‑month period, and you will no longer have any right to make any other objections to it notwithstanding any audit rights you may otherwise have under any applicable law or regulation. Any payments determined to be owed you following an audit shall be paid within forty-five (45) days of the delivery of your CPA’s audit report, unless objected to in writing by Da Farmacy, in which case any payments due shall be postponed pending the resolution of the audit dispute. Unless otherwise prohibited by law, you will not have the right to sue us in connection with any statement, or to sue us for unpaid royalties for the period a statement covers, unless you commence the suit within that eighteen (18)-month period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to a determination of the amount of royalties due for the accounting periods concerned, and the court shall have no authority to consider any other issues or award any relief except recovery of any royalties found owing. Your recovery of any such royalties plus interest shall be the sole remedy available to you by reason of any claim related to our statements.
Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale or distribution of Your Content pursuant to this Agreement, and you hereby indemnify Da Farmacy for any Sales Tax that may be owed in addition to those amounts collected and remitted on your behalf by Da Farmacy.
You, or a licensee acting on your behalf, will be responsible for obtaining and paying for any and all clearances or licenses required in the Authorized Territory (or any portion thereof) for the use of any musical works embodied in Your Content. Without limiting the generality of the foregoing, you (either directly or through a third party acting on your behalf) shall be responsible for and shall pay (i) any royalties and other sums due to artists (featured and non-featured), authors, co‑authors, copyright owners and co-owners, producers, engineers, and any other record royalty participants from sales or other uses of Your Content, (ii)all mechanical royalties or other sums payable to music publishers and/or authors or co-authors of musical compositions embodied in Your Content from sales or other uses of Your Content, (iii)all payments that may be required under any collective bargaining agreements applicable to you or any third party (e.g., to unions or guilds such as AFM or AFTRA), and (iv)any other royalties, fees and/or sums payable with respect to Your Content or other materials provided by you to us. You agree that the amount payable to you is inclusive of any so‑called “artist royalties” that might otherwise be required to be paid for sales or exploitations pursuant to the applicable laws of any jurisdiction and for any public performances, public displays or communications to the public of the sound recordings and musical works constituting Your Content.
Parental Advisory Labeling. You will be responsible for complying with the Recording Industry Association of America’s (“RIAA”) Parental Advisory Logo (“PAL”) Standards, as applicable, for so long as you use the Services.
Rights of Others
When using the Service, you must respect the intellectual property and other rights of Da Farmacy and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Paragraphs E and/or F below.
Service and Content Use Restrictions
Monitoring of Your Content; Removal of Content from Website
Da Farmacy does not control Your Content and does not have any obligation to monitor Your Content for any purpose. Da Farmacy may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Content, but by doing so Da Farmacy assumes no responsibility for Your Content, no obligation to modify or remove any inappropriate elements of Your Content, or to monitor, review or otherwise access any other artist’s content or artwork.
Da Farmacy reserves the right, in its sole and absolute discretion, to remove any of Your Content from the Website if such content: (i)is patently offensive, pornographic or defamatory; (ii)is the subject of a dispute between you or us and a third party; (iii)is content to which you cannot document your rights therein upon Da Farmacy ‘request; (iv)violates the intellectual property rights or other protected interests of a third party; (v)is the subject of a takedown notice by a party claiming to own the rights therein, or (vi)is the subject of any fraudulent activity, or for any other reason in Da Farmacy’ sole and absolute judgment is necessary to protect the business interests of Da Farmacy and any of its business partners or Licensees. Da Farmacy may also remove Your Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any Da Farmacy employees or agents. Da Farmacy shall have no liability to you for the removal of any of Your Content from the Website or any Licensee website or service other than to provide you a credit (but not a refund) for any fees previously paid by you for making Your Content available via the Website or through Licensees. The removal of any of Your Content shall not relieve Da Farmacy of the obligation to pay you any royalties that may have accrued prior to the removal of Your Content.
This Agreement shall not be terminated automatically by Da Farmacy removal of Your Content from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of Your Content, you must send Da Farmacy a Termination Notice.
Account Information; Disclosures
In order to access some features of the Website, including your account information and periodic statements, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to Da Farmacy upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up‑to-date at all times during the Term of this Agreement.
As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify Da Farmacy by e-mail to [email protected] Farmacy.com. You will be solely responsible for the losses incurred by Da Farmacy and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying Da Farmacy that your Account has been compromised.
You acknowledge, consent, and agree that Da Farmacy may access, preserve, and disclose your Account information and Your Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i)comply with legal process; (ii)enforce this Agreement; (iii)respond to a claim that any of Your Content violates the rights of third parties; (iv)to respond to your requests for customer service; or (v)to protect the rights, business interests, property or personal safety of Da Farmacy and its employees and users, and the public.
No Representations and Warranties With Respect to Sales and Distributions
Da Farmacy makes no guarantees regarding the minimum number of unit sales or uses of Your Content. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with Da Farmacy for the sale, distribution or licensed use of Your Content, including by paying the royalties they owe us for the distribution of Your Content. If a Licensee refuses to pay us for the use of Your Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of Your Content if such third party fails or refuses to pay such amounts to Da Farmacy upon Da Farmacy’ request.
Prohibited Use of the Website and Licensee Websites and Services
You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage Da Farmacy, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or Your Content, do or attempt any of the following:
- Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload Your Content to the Website;
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;
- Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of Da Farmacy staff, employees, or affiliates.
- Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
- Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information towards Da Farmacy staff, employees, or affiliates.
- Create a false identity or impersonate another for the purpose of misleading others as to your identity, including, but not limited to, providing misleading information to any feedback system employed by Da Farmacy;
- Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
- Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;
- Upload or otherwise transmit 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 Your Content; or
- Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
- Use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Da Farmacy; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Da Farmacy, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; (ix): (a) use false or deceptive identities, names or accounts; (b) deploy or otherwise use bots, malware, viruses or scrapers; (c) make it appear as though any aspect of your account, User-Generated Content, or Music Content, including, without limitation, your plays, likes, messages, reposts, etc., are more successful than they actually were through unauthentic interactions by you or third parties you engage, manage or transact with (e.g., click-fraud, manipulating social media followings, etc.); (d) engage in any activities that are designed to defraud or game Da Farmacy or third parties; or (e) deploy, or permit any third party to deploy, any technology on, or in connection with, Da Farmacy or Da Farmacy branded sites, systems or services that can enable the tracking of site or service activities or users, except with Da Farmacy prior express written approval; or (x) otherwise violate these Terms or any Additional Terms.
- You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Da Farmacy or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
Availability of Service and Content
Da Farmacy may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and Da Farmacy makes no commitment to update any aspect of the Website. Da Farmacy makes no representations and warranties with respect to availability of the Website and may discontinue the Service at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of Your Content uploaded to the Website or otherwise delivered to Da Farmacy as Physical Product.
Da Farmacy may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Da Farmacy’ sole discretion, and without advance notice or liability.
Reservation of All Rights Not Granted as to Content and Service
These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Da Farmacy and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited
Terms Applicable to Purchases and/or Subscriptions
To purchase access and use of subscriptions we make available for sale on the Service or other products and services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any products or services, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card or otherwise use a valid gift card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For any product or service that you order on the Service, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Da Farmacy will automatically bill your credit card or other form of payment submitted as part of the order process for such price.
Subscription Term & Termination
Except in the event of a free trial offer, your subscription will commence as of the date your payment for a subscription is received by Da Farmacy. Your subscription will continue in full force for the length of the term you specifically purchased or on a month-to-month term until such time as you cancel the subscription as further explained below (the “Subscription Term”). In the event that you cancel a subscription in the middle of your Subscription Term, you will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term.
Da Farmacy will have the right, upon written notice to you, to terminate these Terms, and suspend your access to your subscription, if: (a) you fail to pay Da Farmacy any amount due to Da Farmacy under these Terms; and/or (b) you materially breach any term or condition of these Terms. Da Farmacy shall have the right to terminate these Terms and suspend your access to your subscription with or without cause, upon thirty (30) days written notice to you in which case you will no longer be charged for access to the subscription. Upon the expiration or termination of these Terms for any reason, your access to, and your use of, your subscription will terminate.
Free Trials/Promotional Offerings
We may offer promotional trial subscriptions to access the Service for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to use the Service are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please be aware that when you sign up for a free trial, you will be required to provide your credit card number and Da Farmacy will confirm your credit card is valid. When we process your credit card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
Auto-Renewal of Membership
Your subscription to the applicable subscription on the Service will automatically renew at the end of your Subscription Term continuously and indefinitely without action by the member, and the membership fee is charged to the member at the time of renewal. An enrollee whose membership fee has been paid is entitled to all privileges included in the membership until the membership is cancelled by the enrolled member as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term, and any applicable taxes and service fees (collectively, “Fees”).
The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription or your account is suspended or terminated pursuant to these Terms. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate.
The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize Da Farmacy to charge your payment method for these amounts. Da Farmacy reserves the right to change the pricing of subscriptions at any time. In the event of a price change, Da Farmacy will post the new pricing on the Service and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that we may change the pricing we charge you for your subscription and any products/services offered in your subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize Da Farmacy to charge the new Fees to your payment method. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify Da Farmacy within sixty (60) days after they first appear on an account statement.
Cancellation of Membership
A member will have the right to cancel your subscription at any time upon notice to Da Farmacy by email at [email protected] or by visiting this page to manage your subscriptions. Cancellation of initial membership any time after purchase will result in forfeiture of the membership fee. To avoid a late cancellation fee or forfeiture of the membership renewal fee, membership should be cancelled prior to the end of the then current Subscription Term. Upon cancellation, the member loses access to the areas of the Service designated for members only. This could include any credit and other data and analyses that have been displayed during your membership. To the extent that you continued to get charged after cancellation of your membership due to Da Farmacy error or otherwise, you agree that your sole remedy will be to receive a refund from Da Farmacy for the overcharged amounts.
Methods of Payment, Credit Card Terms and Taxes
All payments must be made via Visa, Mastercard, American Express, JCB, Discover and Paypal. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so.
YOU, AND NOT Da Farmacy, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Da Farmacy of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Da Farmacy does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Da Farmacy or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Da Farmacy shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
All purchase transactions made through the Service are subject to Da Farmacy’ return policy in effect at the time of purchase. Currently, Da Farmacy’ refund policy is to not offer any refunds for any subscriptions or products purchased through the Service, except in our sole and absolute discretion.
Order Acceptance Policy
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Da Farmacy reserves the right at any time after receipt of your order to accept or decline your order for any reason. Da Farmacy further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Da Farmacy upon our delivery of products or services that you have ordered.
We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.
Do not assume that a cancellation or change of an order you have placed with Da Farmacy has been effected until you receive a confirmation from Da Farmacy via email or the Service. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your account was received.
No Responsibility to Sell Mispriced Products or Services
We do our best to describe every item, product or service offered on this Service as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Da Farmacy shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a product you purchased from Da Farmacy is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
Modifications to Prices or Billing Terms
PRODUCTS AND SERVICES DISPLAYED ON THE SERVICE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. Da Farmacy RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SERVICE OR BY E-MAIL DELIVERY TO YOU.
The features, media, content, products, software or services available on and through the Website may be out of date, and Da Farmacy makes no commitment to update any aspect of the Website. Da Farmacy makes no representations and warranties with respect to availability of the Website and may discontinue the Service at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of Your Content uploaded to the Website or otherwise delivered to Da Farmacy as Physical Product.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
Content You Submit and Community Usage Rules
Da Farmacy may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein but expressly excluding Music Content (collectively, “User – Generated Content”). Da Farmacy may allow you to do this through forums, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
Non - Confidentiality of Your User - Generated Content
You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk. In your communications with Da Farmacy, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).
Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, Da Farmacy retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Da Farmacy’ receipt of your Unsolicited Ideas and Materials is not an admission by Da Farmacy of their novelty, priority, or originality, and it does not impair Da Farmacy’ right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
License to Da Farmacy of Your User - Generated Content
Except as otherwise described in any applicable Additional Terms, you grant to Da Farmacy the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.
You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Da Farmacy to your User-Generated Content, you also hereby grant to Da Farmacy, and agree to grant to Da Farmacy, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you.
Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section.
Exclusive Right to Manage Our Service
Da Farmacy may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Da Farmacy may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Paragraph E Section (7)(b)).
Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
Representations and Warranties Related to Your User - Generated Content
Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Da Farmacy the rights to it that you are granting by these Terms and any Additional Terms, all without any Da Farmacy obligation to obtain consent of any third party and without creating any obligation or liability of Da Farmacy; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Da Farmacy’ permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
Da Farmacy has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Da Farmacy’ cost and expense, to which you hereby consent and irrevocably appoint Da Farmacy as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
Community Usage Rules
As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of visitors of the Service’s online forums and work spaces (“Communities”).
Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
- Your User – Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Da Farmacy (for example, if someone has taken a picture of you and your friend, and you submit that photo to Da Farmacy as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.).
- Speaking of Photos. No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
- Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
- Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.
- Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
- Be Honest and Do Not Misrepresent Yourself or Your User – Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
- Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions about job search-related issues with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
- Don’t Share Other Peoples’ Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Da Farmacy.
- Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
- Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
- Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us here. For alleged infringements of intellectual property rights, see Paragraphs F and G, below.
Procedure For Alleging Copyright Infringement
Da Farmacy will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice, using this form that includes at minimum all of the following information:
- a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
- your full name, address, telephone number and email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
- your electronic or physical signature.
Da Farmacy will only respond to DMCA Notices that it receives that are submitting using the following form:
- It is often difficult to determine if your copyright has been infringed. Da Farmacy may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Da Farmacy may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
- Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
- We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
- Without limiting Da Farmacy’ other rights, Da Farmacy may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Da Farmacy.
Counter - Notification
If access on the Service to a work that you submitted to Da Farmacy is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the following address:
- By Mail: Da Farmacy, 4301 W William Cannon Dr Ste B-150, Austin, TX 787349
- By email: [email protected] Farmacy.com
- Your DMCA Counter-Notification should contain the following information:
- a legend or subject line that says: “DMCA Counter-Notification”
- a description 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 (please include the URL or page of the Service from which the material was removed or access to it disabled);
- a statement under penalty of perjury that you have 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;
- your full name, address, telephone number, e-mail address, and the username of your account;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Western District of Texas), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and your electronic or physical signature.
- Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us an email to [email protected] Farmacy.com that includes all of the following:
- a legend or subject line that says: “Intellectual Property Infringement Notice”
- a description of the intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
- your full name, address, telephone number and email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
- a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Da Farmacy with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
Notices and Questions
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us at [email protected]. You acknowledge that the provision of customer support is at Da Farmacy’ sole discretion and that we have no obligation to provide you with customer support of any kind.
Links by You to the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Da Farmacy or cause any other confusion, and (c) the links and the content on your website do not portray Da Farmacy or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Da Farmacy. Da Farmacy reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
Linked-To Websites; Advertisements; Dealings with Third Parties
The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, recruitment services and certain other third parties who may have business relationships with Da Farmacy. Da Farmacy may have no control over the content, operations, policies, terms, or other elements of Linked Services, and Da Farmacy does not assume any obligation to review any Linked Services. Da Farmacy does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Da Farmacy is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services. Finally, Da Farmacy will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. Da Farmacy disclaims all liability in connection therewith.
Dealings with Third Parties
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Da Farmacy disclaims all liability in connection therewith.
The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
Terms of Wireless Features
You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
Telephone and Mobile Communications and Agreement To Be Contacted
Da Farmacy may offer from time to time a text message or other SMS program (“SMS Program”), through which it sends periodic autodialed text or SMS messages with Da Farmacy and third party offers, such as coupons and discounts. You will only receive these autodialed text/SMS marketing messages if you have opted in to the recurring text/SMS message program, and you are not required to opt in to make a purchase from Da Farmacy. Although the SMS Program is free, message and data rates may apply. You should check with your wireless carrier if you have questions about your plan and its coverage. To sign up for the SMS Program, text JOIN to 15125591979. To stop receiving marketing text/SMS messages from Da Farmacy, reply STOP to the last message received, or to 15125591979. You may receive a single subsequent text/SMS message confirming your opt-out. For more information, reply HELP to the last message received, or to 15125591979, or contact us at [email protected] Farmacy.com.
Providing Telephone Numbers and Other Contact Information.
You verify that any contact information provided to Da Farmacy, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your account is false or inaccurate, we may suspend or terminate your account at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to all of our shortcodes to which you are subscribed, which may include, but are not limited to: 15125591979, contacting us at [email protected].
Your Consent to Receive Automated Calls/Texts.
You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive artificial voices, prerecorded voice messages, and/or autodialed calls and text messages (such as SMS, MMS, or successor protocols or technologies) from us, our agents, and affiliates related to your account(s), transactions, offers regarding products or services, and/or your relationship with Da Farmacy. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that Company may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means.You agree to receive automated calls and text messages from Company, our agents, and affiliates even if you cancel your account or terminate your relationship with us, unless you opt-out. You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or text STOP to shortcode 15125591979 and specify that you want to opt out of text messages. You may also text HELP for help. You acknowledge and agree to receive a final text message confirming your opt-out. We may use different shortcodes for different messaging purposes, so texting STOP to one shortcode will not effectuate a stop request for all shortcodes to which you are subscribed. If you would like to stop messages from multiple shortcodes, text STOP to each shortcode to which you would like to unsubscribe.It is your sole responsibility to notify us if you no longer want to receive automated text messages. You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request.
Fees and Charges.
There is no fee to receive automated text messages from Da Farmacy, our agents, and affiliates. However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Da Farmacy, our agents, and affiliates are not responsible for such charges.
Unauthorized Use of Your Telephone Device.
You must notify Da Farmacy immediately of any breach of security or unauthorized use of your telephone device. Although Da Farmacy, our agents, and affiliates will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
Certain portions of this Paragraph L are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Da Farmacy agree that we intend that this Paragraph L satisfies the “writing” requirement of the Federal Arbitration Act.
First - Try to Resolve Disputes and Excluded Disputes.
If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Da Farmacy’ actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Paragraph L(1)(b), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Paragraph L. Your notice to us must be sent via email to [email protected] Farmacy.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Da Farmacy and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Da Farmacy to resolve the Dispute or Excluded Dispute on terms with respect to which you and Da Farmacy, in each of our sole discretion, are not comfortable.
If we cannot resolve a Dispute as set forth in Paragraph L (1)(a) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND Da Farmacy (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Da Farmacy and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Da Farmacy and you agree, however, that the applicable state, federal or provincial law, as contemplated in Paragraph L(1)(f) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Da Farmacy regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Da Farmacy consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted Austin, Texas. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Da Farmacy to pay a greater portion or all of such fees and costs in order for this Paragraph L to be enforceable, then Da Farmacy will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN PARAGRAPH L(1)(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Paragraph L (a); (b) filing for arbitration as set forth in Paragraph L (1)(b); or Paragraph L(f) filing an action in state, Federal or provincial court.
The foregoing provisions of this Paragraph L will not apply to any legal action taken by Da Farmacy to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Da Farmacy’ intellectual property rights (including such Da Farmacy may claim that may be in dispute), Da Farmacy’ operations, and/or Da Farmacy’ products or services.
No Class Action Matters.
YOU AND Da Farmacy AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Paragraph L to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Paragraph L(1)(f). Notwithstanding any other provision of this Paragraph L, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Austin, Texas. Accordingly, you and Da Farmacy consent to the exclusive personal jurisdiction and venue of such courts for such matters.
Small Claims Matters Are Excluded from Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of Texas, without regard to its conflicts of law provisions.
Disclaimer of Representations and Warranties
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.
Therefore, to the fullest extent permissible by law, Da Farmacy, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “Da Farmacy Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- the Service (including the Content, Music Content and the User-Generated Content);
- the functions, features, or any other elements on, or made accessible through, the Service;
- any products, services, developer code or instructions offered or referenced at or linked through the Service;
- security associated with the transmission of your User-Generated Content transmitted to Da Farmacy via the Service;
- whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
whether any defects to, or errors on, the Service will be repaired or corrected;
- whether your access to the Service will be uninterrupted;
- whether the Service will be available at any particular time or location; and
- whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN
ADDITIONAL TERMS PROVIDED BY A Da Farmacy PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE Da Farmacy PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
Limitations of our Liability
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY Da Farmacy PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- the Service (including the Content, Music Content and the User-Generated Content;
- your use of or inability to use the Service, or the performance of the Service;
- any action taken in connection with an investigation by Da Farmacy Parties or law enforcement authorities regarding your access to or use of the Service;
any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any injury or damages you sustain directly or indirectly as a result of your use of the Service or any Music Content;
any errors or omissions in the Service’s technical operation; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Da Farmacy Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Da Farmacy PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID Da Farmacy TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
Updates to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.
You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.
Da Farmacy' Consent or Approval
As to any provision in these Terms or any Additional Terms that grant Da Farmacy a right of consent or approval, or permits Da Farmacy to exercise a right in its “sole discretion,” Da Farmacy may exercise that right in its sole and absolute discretion. No opt-in consent or approval may be deemed to have been granted by Da Farmacy without being in writing and signed by an officer of Da Farmacy.
Relationship of the Parties
The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture between you and Da Farmacy, and Da Farmacy shall not have a fiduciary obligation to you as a result of your entering into this Agreement.
This Agreement together with the TOS contains the entire understanding of the parties relating to the subject matter hereof. This Agreement (including all Addenda) supersedes all previous agreements or arrangements between you and Da Farmacy pertaining to the Services, provided that if you previously entered into a digital distribution or consignment agreement with us in the past, and elected any options specifying or limiting the scope of the distribution of Your Content, the limitations and authorizations with respect to the distribution of Your Content shall remain in place under this Agreement and the applicable Addendum. This Agreement cannot be changed or modified except as provided herein.
This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
No Third Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
The titles and headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
Da Farmacy may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Da Farmacy.
You agree to, and you hereby, defend, indemnify, and hold Da Farmacy Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Da Farmacy Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Da Farmacy Parties’ use of the information or content that you submit to us (including your User-Generated Content and Music Content) (all of the foregoing, “Claims and Losses”).
You will cooperate as fully required by Da Farmacy Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Da Farmacy Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Da Farmacy Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Da Farmacy Party.
Furthermore, you agree to, and you hereby, defend, indemnify, and hold Da Farmacy Parties harmless from and against any and all, but not limited to, any Claims made by a PRO or music publisher with respect to any public performances or communications to the public of any musical works embodied in Your Content, any contributor to any sound recording included within Your Content, including claims from any unions, guilds, background musicians for vocalists, engineers, etc., or any other party for any use or misuse of any other forms of intellectual property or proprietary rights in Your Content, including, but not limited to, trademark rights and invasions of the right of privacy or publicity. You agree to reimburse us, on demand, for any payment made by us at any time with respect to any Claims to which the foregoing indemnity applies. Pending the resolution of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this Section.
If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by Da Farmacy or imposes any conditions or obligations on Da Farmacy other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe Da Farmacy an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
Operation of Service; Availability of Products and Services; International Issues
The Service is operated in the United States, and is primarily intended for users located in the U.S. Da Farmacy makes no representation that the Service is appropriate or available for use beyond the U.S. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).
To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Investigations; Cooperation with Law Enforcement; Termination; Survival
Da Farmacy reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Da Farmacy in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.
Any suspension or termination will not affect your obligations to Da Farmacy under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Da Farmacy, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Da Farmacy in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Da Farmacy in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict Da Farmacy’ right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
Terms Applicable For Apple Device Users
If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
- To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Da Farmacy and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
- The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
- You acknowledge that Da Farmacy, and not Apple, is responsible for providing the Service and Content thereof.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
- To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
- Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Da Farmacy, Da Farmacy and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
- You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.