[Updated June 1, 2010]
National Radio Holdings, LLC ("Finetune", "we" or us") provides this web site, located at URL http://www.finetune.com, all associated web pages maintained by us and the Finetune powered audio services (collectively, the "Finetune Services"), along with all information and content provided therewith (the "Content"), to you, subject to the terms and conditions contained in this Terms of Use (the "Terms"). PLEASE READ THESE TERMS CAREFULLY. BY USING FINETUNE SERVICES, YOU AGREE TO ADHERE TO AND BE BOUND BY THESE TERMS, AS THEY MAY BE MODIFIED FROM TIME TO TIME IN THE SOLE DISCRETION OF FINETUNE. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THESE TERMS, YOU ARE NOT PERMITTED TO USE THE FINETUNE SERVICES.
We reserve the right to amend the Terms at any time and will notify you of any such changes by making the revised Terms available through the Finetune Services. Unless otherwise specified, those changes shall be effective upon posting. It is your obligation to review changes in these Terms, and you agree that your continued use of the Finetune Services after the posting of any revised Terms constitutes your agreement to be bound by the revised Terms.
Permitted Users:
Currently, Finetune Services are available for use only by United States residents who are 13 years of age or older. You acknowledge and agree that you may not access, attempt to access, or use the Finetune Services from countries outside of the United States or if you are not at least 13 years of age.
The Finetune Services include public areas that are generally accessible to the public and contain information about Finetune and the Finetune Services (the "Public Areas"). Individuals who desire to become Registered Users will be required to select a user identification ("Username") and password (the "Password"). Registered Users are solely responsible for all activity occurring through the use of their Password and for keeping their User ID and Password confidential. Registered Users are also responsible for all activity by others to whom such Registered Users have voluntarily disclosed their password. Registered Users shall notify Finetune immediately upon becoming aware of any actual or suspected unauthorized use, unauthorized disclosure, or theft of any User ID or Password.
Subject to the terms and conditions of these Terms, Finetune grants you a non-exclusive, personal, non-transferable, non-sublicensable, limited and revocable right to access, use and display the Finetune Services and the Content on any computers or other electronic display device of which you are a user, for your personal use only (the "Permitted Uses"). You agree to use the Finetune Services and Content only for lawful purposes and for the Permitted Uses. No other use of the Finetune Services or the Content is authorized. You are prohibited from any use of the Finetune Services or Content that would constitute an illegal offense, give rise to liability or otherwise violate any applicable laws or regulations or these Terms. You may not publicly perform, distribute, publicly display, transmit, publish, participate in the sale or transfer of, modify or create derivative works based on any Content, in whole or in part. No right, title, or interest in any materials or software is transferred to you as a result of your use of the Finetune Services.
The Content may include sound recordings (the "Recordings"). Once a sound recording is transmitted in digital format, it can be easily distributed across the Internet or other digital media. To ensure the protection of Recordings, Finetune must place limitations on the use of Recordings. All unauthorized duplication, distribution, performance, sale or other use of any Recordings contained on or streamed from the Finetune Services is a violation of the Terms, copyright law and international treaties. Except for Recordings expressly identified by Finetune as available for downloading, no Recordings, Content or other materials made available on via the Finetune Services may be downloaded or otherwise captured. You may not re-post the Recordings on the Internet or make copies thereof for yourself or others.
The limited license granted to you pursuant to these Terms does not include any resale or commercial use of the Finetune Services or the Content; any collection and use of any Recordings or listings thereof, descriptions, or prices; any derivative use of the Finetune Services or the Content; any downloading or copying of account information for the benefit of another entity or person; or any use of data mining, robots, or similar data gathering and extraction tools. You may not reproduce, duplicate, copy, sell, resell, modify, reverse engineer, decompile, disassemble or create derivative works of or otherwise exploit for any commercial purpose the Finetune Services, the Content, or any portion of the foregoing, without express written consent of Finetune. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Finetune and our affiliates or licensors without our express written consent. None of the Content or the Finetune Services may be retransmitted without the express written consent of Finetune, nor may it be used on any other web site or stored on any networked computer environment. You may not use any metatags or any other "hidden text" utilizing Finetune's name or trademarks without the express written consent of Finetune. Any unauthorized use terminates the permission and/or license granted by Finetune without the need for further action by Finetune.
FINETUNE and FINETUNE.COM are service marks of NextRadio Solutions or its affiliates. Other company, product and service names and logos used and displayed on or within the Finetune Services may be trademarks or service marks owned by others. Nothing contained on or within the Finetune Services should be construed as granting any license or right to use any of the Finetune trademarks or other trademarks displayed on or within the Finetune Services without the prior written permission in each instance of Finetune and/or the owner(s) of such other trademarks. Without limiting the generality of the foregoing, we prohibit the use of any Finetune trademarks as part of a link to or from any web site unless such a link is approved in advance by us in writing. All goodwill generated from the use of the Finetune trademarks on any web site will inure to our benefit.
All Content included within or made available through the Finetune Services, including without limitation Recordings, software, editorial materials, photographs, text, graphics, logos, audio, button icons, and images are the property of Finetune, its affiliates, content suppliers, or its licensors and are protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all Content included within or made available through the Finetune Services is the exclusive property of Finetune or such third parties, as applicable, and protected by U.S. and international copyright laws. All software used in connection with the Finetune Services is the property of Finetune or its software suppliers and protected by U.S. and international copyright laws.
If you believe, in good faith, that the Finetune Services infringe your copyright, you should send a notice of claimed copyright infringement, pursuant to Title 17, United States Code, Section 512(c)(2) (a portion of the "Digital Millennium Copyright Act"), to our designated agent Lynel Leonard at NextRadio Solutions, 255 Washington Street , Two Newton Place Suite 150, Newton, MA 02458.
You must include the following information in all notices of claimed copyright infringement:
Finetune will make all reasonable efforts to keep the Finetune Services operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. Finetune also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of any of the Finetune Services with or without notice. You agree that Finetune shall not be liable to you or to any third party any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Finetune Services.
By using the Finetune Services and providing information to Finetune, you agree that Finetune may use the information you provide to us in accordance with our Privacy Policy.
Subject to the terms and conditions of our Privacy Policy, Finetune has the right, but not the obligation, to monitor the use of the Finetune Services and to disclose such information as we deem necessary or appropriate, including without limitation, to satisfy any law, regulation or other governmental request, to operate the Finetune Services or to protect ourselves or other users of the Finetune Services.
Any unsolicited communications that you make to Finetune through the Finetune Services, including communications containing feedback, comments, ideas and concepts (collectively, "Unsolicited Communications") will be considered non-confidential and non-proprietary. Finetune and its affiliates are free to use and dispose of such Unsolicited Communications for any purpose and in any manner whatsoever. By submitting an Unsolicited Communication, you hereby grant Finetune and its affiliates a perpetual, royalty-free, fully paid-up and irrevocable right and license to use, reproduce, modify, publicly display, distribute, transmit, sublicense, create derivative works from, transfer, sublicense and sell such Unsolicited Communications. By providing Unsolicited Communications you warrant and represent that you own or otherwise control all of the rights to your Unsolicited Communications. Please be aware that no compensation will be paid with respect to the use of any Unsolicited Communications by Finetune or any of its affiliates.
YOU ACKNOWLEDGE AND AGREE THAT THE FINETUNE SERVICES AND ALL CONTENT ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING ANY OF THE FOREGOING, NONE OF FINETUNE, ITS AFFILIATES OR THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "FINETUNE PARTIES") WARRANT THAT THE FINETUNE SERVICES WILL OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT FINETUNE SERVICES OR THE SERVER THAT MAKES SUCH SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE, BY YOUR USE OF THE FINETUNE SERVICES, THAT YOUR USE OF THE FINETUNE SERVICES IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE FINETUNE SERVICES, AND THAT NONE OF THE FINETUNE PARTIES SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THE FINETUNE SERVICES.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH YOUR USE OF THE FINETUNE SERVICES OR OUR CONTENT IS TO STOP USING THE FINETUNE SERVICES AND/OR THE CONTENT. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL THE FINETUNE PARTIES BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE FINETUNE SERVICES OR ANY OF THE CONTENT, INCLUDING: LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; ANY FAILURE OF PERFORMANCE, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR COMPUTER VIRUS; OR THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OR USE OF YOUR INFORMATION, EQUIPMENT OR PROPERTY, EVEN IF THE FINETUNE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE EXCLUDED DAMAGES. FURTHER, THE FINETUNE PARTIES WILL NOT BE RESPONSIBLE FOR ANY FAILURE TO COMPLY, BY YOU OR ANY THIRD PARTY, WITH THESE TERMS OR WITH APPLICABLE FEDERAL, STATE AND LOCAL LAWS.
THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF: (I) ANY NEGLIGENCE OR GROSS NEGLIGENCE OF ANY FINETUNE PARTY OR (II) WHETHER THE LIABILITY SOUNDS IN NEGLIGENCE, STRICT LIABILITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY; AND WILL REMAIN IN EFFECT EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF WARRANTIES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN THOSE STATES, THE FINETUNE PARTIES? LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE FINETUNE PARTIES? AGGREGATE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
You agree to defend, indemnify and hold the Finetune Parties harmless from and against any and all claims, damages, costs, and expenses, including attorneys' fees, arising from or related to your use of the Finetune Services or Content.
You acknowledge and agree that Finetune may suspend or terminate your access to and use of the Finetune Services at any time, with or without cause, in Finetune's absolute discretion and without notice, including for any breach of these Terms. The relevant version of these Terms shall continue to apply to all prior use of the Finetune Services. The following paragraphs of these Terms shall survive termination of your use or access to the Finetune Services: paragraphs concerning indemnification, disclaimers, limitations of liability, termination and general provisions and any other provision that by its terms survives termination of your use of or access to the Finetune Services.
To the extent that the Finetune Services contain links to outside services and resources, the availability and content of which Finetune does not control, any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service or resource. Finetune makes no representation or warranty regarding any other web sites or the contents or materials on such web sites. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY THIRD PARTY SITE, NOR DO WE MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE CONTENT (OR THE ACCURACY OF SUCH CONTENT) ON ANY THIRD PARTY SITES, AND WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER IN RELATION TO ANY OF THE FOREGOING.
The Finetune Services are created and controlled by Finetune and/or its affiliates in the Commonwealth of Massachusetts, USA, without regard to its conflict of laws rules. As such, the laws of the Commonwealth of Massachusetts will govern these disclaimers, terms, and conditions, without giving effect to any principals of conflict of laws. All claims and disputes arising out of these Terms or the Finetune Services, other than action for specific performance or injunctive relief brought by Finetune, shall be exclusively brought in the federal, state, or local courts located in Boston, MA, USA and, with regard to such claims and disputes, you hereby irrevocably (i) submit to the exercise of personal jurisdiction over you by those courts and (ii) waive any jurisdictional, venue, or inconvenient forum objections to such courts.
Failure by Finetune to enforce any provision(s) of these Terms shall not be construed as a waiver of any provision or right. In the event that any portion of these Terms is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. These Terms constitute the entire agreement between you and Finetune with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreement not specifically incorporated herein. Any claim under these Terms must be brought within one (1) year after the date upon which the cause of action arose.
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