Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
This site (together with any information, materials and services made available therein) (the “Web Site”), and any related mobile software application(s) made available by us in connection with this site (together with any information, materials and services made available therein) (the “App”; the Web Site and App collectively, the “Site”), is provided by Orchard Enterprises NY, Inc. (“The Orchard”) for your use subject to the terms of these terms and conditions of use and all modifications thereto (“Terms and Conditions”).
BY ACCESSING OR USING THE SITE, OR BY CLICKING A BOX INDICATING THAT YOU ACCEPT OR AGREE TO THESE TERMS AND CONDITIONS, YOU CONSENT TO BE BOUND BY THESE TERMS AND CONDITIONS. If you do not agree to these Terms and Conditions, do not access or use this Web Site. We may change these Terms and Conditions from time to time by notifying you of such changes by any reasonable means, including by posting the revised Terms and Conditions through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms and Conditions incorporating such changes, or otherwise notified you of such changes. Your access to or use of the Site following any changes to these Terms and Conditions will constitute your acceptance of such changes. The Last Updated legend above indicates when these Terms and Conditions were last changed. We may, at any time and without liability, modify or discontinue all or part of the Site (including access to the Site via any third-party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users.
If you are an individual accessing or using the Site on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization“), then you are agreeing to these Terms and Conditions on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms and Conditions. References to “you“ and “your“ in these Terms and Conditions will refer to both the individual using the Site and to any such Organization.
Sites that are linked to or from the Site may have different Terms and Conditions; please review the terms and conditions on those sites.
1. Limitations on Use
The Site is provided to you solely for purposes related to the digital licensing agreement between you and The Orchard (herein, the “Licensing Agreement”). If you fail to abide by these Terms & Conditions, or the terms and conditions of the Licensing Agreement, The Orchard reserves the right to suspend or terminate your access to the Web Site and/or the App. Your access to the Site shall also terminate upon expiration or termination of the Licensing Agreement. Without limitation of the foregoing, you agree to not use the Site to upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any material that violates the rights of any person or entity or violates any applicable governmental law, rule or regulation. You shall defend and indemnify The Orchard, and its parents, subsidiaries, affiliates, directors, officers, employees, shareholders, successors and assigns (collectively, the “Related Entities”) pursuant to the applicable provisions of the Licensing Agreement if any third party claim results from your violation of the foregoing. Sections 1 (last two sentences), 2 (last sentence), 3 (other than the first sentence) and 4 through 13 shall survive any termination of these Terms and Conditions.
2. Accounts, Security, Passwords
In order to utilize this Site, you were provided with an account with a username and password. You are responsible for maintaining the strict confidentiality of your account password, and you shall be responsible for any access to or use of the Site by you or any person or entity using a password provided to you, whether or not such access or use has been authorized by or on behalf of you, and whether or not such person or entity is your employee or agent. You agree to immediately notify The Orchard of any unauthorized use of your password or account or any other breach of security. It is your sole responsibility to control the dissemination and use of your password, control access to and use of your account. The Orchard will not be liable for any loss or damage arising from your failure to comply with this provision.
3. Third Party Web Sites
You may be able to link to third parties’ web sites from the Site, for example through links to various third party vendors referenced under “Marketing Tools.” Linked sites are not controlled by The Orchard and these Terms and Conditions are not intended to govern any such third party web sites. The Orchard does not monitor, make any representations with respect to or assume any liability with respect to any third party web sites, including, but not limited to, any information or materials made available on, or any products or services that are advertised or available for purchase through, such third party web sites. The Orchard disclaims any responsibility or liability relating to any linked sites and does not assume any responsibility for their contents, products or services.
4. Intellectual Property Rights
All materials contained on the Site (other than materials furnished by you pursuant to the Licensing Agreement) are the exclusive property of The Orchard or its licensors, and The Orchard and its licensors reserve all applicable copyright, patents, trademarks, trade secrets and other intellectual property rights thereto.
Subject to your compliance with these Terms and Conditions, and solely for so long as you are permitted by The Orchard to access and use the Web Site, you may view one (1) copy of any portion of the Web Site to which we provide you access hereunder.
The App is licensed (not sold) to end users. Subject to your compliance with these Terms and Conditions, and solely for so long as you are permitted by The Orchard to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a mobile device that you own or control, solely for your use hereunder. If you fail to comply with any of the terms or conditions of these Terms and Conditions, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.
The Site is subject to the confidentiality provisions of the Licensing Agreement. If and to the extent the Licensing Agreement does not include such provisions, you agree that you shall hold in confidence and not communicate, transmit, publish, disseminate or otherwise disclose any of the Site’s features, offerings and/or services. Such restrictions shall not apply to information which (i) at or after the time of disclosure becomes generally available to the public through no wrongful or negligent act or omission on your part; (ii) you receive from a third party free to make such disclosure without breach of any legal obligation; or (iii) is required to be disclosed pursuant to any statute, regulation, order, subpoena or document discovery request (as to which you shall give The Orchard prompt notice). The fulfillment of your obligations under this paragraph is integral to the success of The Orchard’s business dealings and The Orchard shall be entitled to injunctive relief to enforce the provisions hereof without limitation of its other rights.
7. Disclaimer of Warranties
YOUR USE OF THE SITE IS AT YOUR SOLE RISK; ALL INFORMATION, FEATURES, OFFERINGS, MATERIALS AND SERVICES OFFERED BY OR THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. NO SUCH INFORMATION, FEATURES, OFFERINGS, MATERIALS OR SERVICE SHALL CREATE ANY WARRANTY OF ANY KIND. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SITE ARE PROVIDED BY THE ORCHARD SUBJECT TO THE FOREGOING, EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND THE ORCHARD. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation of Liability
IN NO EVENT WILL THE ORCHARD, ITS RELATED ENTITES, OR ANY OF THEIR REPRESENTATIVES, DISTRIBUTORS, SUPPLIERS, LICENSORS, AGENTS OR OTHERS INVOLVED IN CREATING, SPONSORING, PROMOTING OR OTHERWISE MAKING AVAILABLE THE SITE AND ITS CONTENT (COLLECTIVELY, THE COVERED PARTIES), BE LIABLE TO ANY PERSON OR ENTITY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR ANY OTHER DAMAGES WHATSOEVER (i) ARISING IN ANY WAY OUT OF THE SITE, OR ITS AVAILABILITY, USE, RELIANCE ON OR INABILITY BY YOU TO USE THE SITE, (ii) ARISING FROM UNAUTHORIZED ACCESS TO OR TAMPERING WITH YOU PERSONAL INFORMATION OR TRANSMISSIONS; OR (iii) FOR ANY CLAIM ATTRIBUTABLE TO ANY ALLEGED ACT OR OMISSION OF THE ORCHARD IN CONNECTION WITH THE SITE, OR ANY FAILURE OF THE SITE OR ITS FEATURES, OFFERINGS AND/OR SERVICES, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF, THE SITE. THIS LIMITATION OF LIABILITY SHALL APPLY, EVEN IF THE COVERED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE MAXIMUM AGGREGATE LIABILITY OF THE ORCHARD FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE FIFTY DOLLARS (U.S. $50.00).
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY, IN SUCH STATES OR JURISDICTIONS, THE COVERED PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
We may (but have no obligation to) monitor, store, evaluate, analyze, alter or remove materials submitted by you before or after they appear on the Site, or analyze your access to or use of the Site. We may disclose information regarding your access to and use of the Site, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
10. Code of Conduct
In connection with the Site, you must not:
Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
Use the Site for any purpose that is fraudulent or otherwise tortious or unlawful.
Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Web Site; or violate any requirement, procedure or policy of such servers or networks.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without The Orchard’s express prior written consent.
Reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Site.
Frame or mirror any portion of the Web Site, or otherwise incorporate any portion of the Web Site or App into any product or service, without The Orchard’s express prior written consent.
Systematically download and store Site content.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Web Site, without The Orchard’s express prior written consent.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Site.
11. Other Important Provisions
The Site is controlled or operated (or both) from the United States, and is not intended to subject The Orchard to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
If any provision of the Terms and Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect. Orchard may assign its rights and obligations under these Terms and Conditions, in whole, or in part, in its sole discretion without notice to you. You may not assign your rights or obligations under these Terms and Conditions.
Your warranties, representations and indemnities, as well as the choice of law and venue/jurisdiction provisions, of the Licensing Agreement are incorporated herein by reference as if fully stated herein. The Orchard’s rights under these Terms and Conditions and its rights under the Licensing Agreement are intended to be cumulative and not limiting.
If you have any questions about this policy or our site in general, please contact your Orchard representative.
12. Export Controls and Sanctions.
You are responsible for complying with United States export controls and sanctions and for any violation of such controls and sanctions, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo, sanctions, or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country unless otherwise permitted pursuant to such rules and regulations; or (b) on any of the U.S. government lists of specially designated nationals or other restricted end users.
13. Apple-Specific Terms
In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms and Conditions and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to The Orchard. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms and Conditions and, upon your acceptance of these Terms and Conditions, will have the right (and will be deemed to have accepted the right) to enforce the Terms and Conditions against you as a third-party beneficiary thereof; notwithstanding the foregoing, The Orchard’s right to enter into, rescind or terminate any variation, waiver or settlement under these Terms and Conditions is not subject to the consent of any third party.