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Printable Version ARTIST TERMS OF USE OF GIGABOXX.COM Welcome to Gigaboxx.com. Your access to and use of www.gigaboxx.com and the use and/or making available of content downloaded and/or uploaded from/to Gigaboxx.com is subject to these Terms of Use. By accessing and using the gigaboxx.com you agree to be bound by these Terms of Use. We reserve the right to update or amend these Terms and Conditions at any time and your continued use of the website/service following any changes shall be deemed to be your acceptance of such change. It is therefore your responsibility to check the Terms and Conditions regularly for any changes. In these terms and conditions "you" and "your" refer to you, the person registering as a user of Gigaboxx.com in accordance with section 1 below and "we", "us" and "our" refers to Gigaboxx.com and Gigaboxx.com as the case may be. If you do not accept these Terms and Conditions you must immediately stop using the website/services. 1.Registration, Service Selection & Term 1.1 As part of the registration process you will submit a user name and password which, if verified by us, will be the username and password that you will be required to submit each time you log onto Gigaboxx.com. It is your responsibility to keep your username and password secret. You agree that we will be entitled to assume that any person logging into Gigaboxx.comusing your username and password is either you or someone doing so with your permission. You will be responsible and liable for any actions of any person logging into Gigaboxx.comusing your username and password including, without limitation, purchasing content and posting information to blogs, chat rooms or discussion forums. 1.2 During the registration process you will be required to select “8 day trail. Starter accounts are free of charge. 1.3 Both you and we shall be entitled to terminate your account within seven (7) days of receipt of payment from you provided always that in the event your user account is so terminated we shall refund in full all fees paid by you. 1.4 Before your membership expires, we will send you an email to let you know that your membership is due for renewal along with instructions for renewing. 1.5 We will only keep and use any data collected during the registration process for the purposes set out in our privacy policy: http://www.Gigaboxx.com/termsandconditions#privacy 1.6 We reserve the right to refuse to accept a registration from any person for any reason in our absolute discretion. The Starter service may be terminated by us at any time. You will be able to manage your account preferences and actions through the “Account Manager” feature of Gigaboxx.com. 1.7 Fraudulent activity of any kind including but not limited to chart hyping or using invalid payment methods is strictly prohibited and is considered a breach of these terms. 1.8 YOU AGREE THAT YOU SHALL INDEMNIFY US AGAINST ANY LOSS, LIABILITY, CLAIM, DAMAGE OR EXPENSE INCURRED BY US ARISING OUT OF ANY BREACH BY YOU OF CLAUSE 1.8 ABOVE. 2. Accessing Gigaboxx .com 2.1 In order to access and use Gigaboxx.com and to make Content (as defined below) available you must have access to the internet via a personal computer with at least the following minimum system requirements: (a) PC requirements: You must have a PC running Windows 98 or above with Flash Player 8 (or above) and Internet Explorer 6 (or above) or Firefox 1.5.0.3 (or above). (b) Mac requirements: A Mac running OS X 10.1 or later with Flash Player 8. Gigaboxx.comdoesn’t currently support Safari. We would recommend using Internet Explorer 5 (or above) or Firefox 1.5.0.3 (or above). 3. Making Content Available on Gigaboxx.com 3.1 You may make available on Gigaboxx.com certain music “Music Tracks” (via both downloading and/or (where applicable) streamed samples), video, text, images, graphics, photographs, trademarks, logos and artwork (collectively, “Content”). 3.2 In order to make Content available on Gigaboxx.com you must follow the uploading instructions in the Add Tracks section of the Gigaboxx Manager. 3.3 You will select in which price band you wish us to make your audio-only Content available to consumers when uploading your Content to our servers. For the avoidance of doubt, the price band selected in accordance with this clause 3.6 shall determine the amount of revenue we receive in respect of sales of audio/video-only Content and, accordingly, the monies that will become due to you pursuant to the royalty provisions set out in clause 7 below. 3.4 In the event that we suspect, believe or are notified that any Content uploaded by you to Gigaboxx.comin any way infringes the rights of any third party, or is otherwise in breach of these Terms of Use (including without limitation your warranties as to no defamatory, obscene or racist material), we may, in our sole discretion, elect not to make such item(s) of Content available to end users of Gigaboxx.com unless and until we are reasonably satisfied that such Content does not in fact infringe any such third party rights or is not in breach of your other obligations hereunder. Whilst carrying out such investigation we may remove some or all of the Content uploaded by you to Gigaboxx.com pending completion of any investigation to our reasonable satisfaction. 3.5 In the event that we discover that such item(s) of Content does in fact infringe third party rights or you are otherwise in breach of these Terms of Use, then we may in our sole discretion elect to either suspend or terminate your user account in accordance with the suspension and termination provisions set out in clause 9 below. 4. Grant of Rights to Gigaboxx.com 4.1 In order for us to make the Content available on Gigaboxx.com you hereby grant to us the following rights in respect of the Content: (a) the right to host, edit, make available, display, transmit or otherwise deliver the Content (for download and/or streaming in the case of Music/video Tracks) to visitors to Gigaboxx.com who may wish to purchase and/or listen to and/or view certain items of Content “Users”; (b) the right to make copies and encode and/or transcode the Content in order to make it available to users; and (c) in the case of Music Tracks, the right to edit to produce shortened versions of such Music Tracks (for example thirty (30) second clips) so that Users can preview such Music Tracks. 4.2 As applicable to accounts (automatically unless you opt-out in your Account Manager), to register your Music Tracks for ISRC codes, you hereby grant to us the following rights in respect of the Music Tracks: (e) to help facilitate licensing of the Music Tracks, you authorise and appoint Gigaboxx Limited, acting through its officers, as your true, lawful, and exclusive attorney-in-fact, with full power of substitution and delegation, in your name, and in your place and stead, or Gigaboxx’s name, to take and do such action, and to execute, acknowledge and deliver any and all documents necessary to register the Music Tracks with ISRC agencies. It is understood that the ISRC number will permanently attach to the Music Tracks, but will not in any way affect your ownership of such content, which is reserved to you. You represent and warrant that you have not and will not appoint any other party the foregoing rights with respect to your Music Tracks. Once an ISRC code is allocated to your Music Tracks, you will be able to view this in your Account Manager and Gigaboxx will use such ISRC codes in future exploitation of your Music Tracks. 4.3 You hereby acknowledge and agree that once a User has paid for any Music Track, they will be entitled to download and use the Music Track and shall be entitled to use any such Music Track purchased from Gigaboxx.com for personal, non-commercial purposes and in particular they shall be entitled to at least: (a) store one copy of the downloaded Music Track on up to five (5) personal computers; (b) store one copy of the downloaded Music Track on up to five (5) portable personal digital content players; and (c) make up to ten (10) copies of the Music Track on CD-ROM or other physical media. 4.4 You further acknowledge and agree that we will not charge for, and you will not be entitled to receive any revenue from, the streaming of previews of Music Tracks and downloads designated by you as free to Users and that such streams and/or downloads shall be free of charge to Users. 4.5 In respect of Content items other than Music Tracks, you hereby acknowledge and agree that Users of Gigaboxx.com shall be able to print copies of such artistic, biographical or other such items of Content free of charge and you shall not receive any payment for Content items other than downloaded Music Tracks in accordance with the payment provisions set out below. 4.6 In the event that the download of a Music Track is unsuccessful (for instance, as a result of a loss of connection to the internet) we are hereby permitted to redeliver that Music Track free of charge to the intended recipient consumer provided always that you shall only be entitled to receive the applicable royalty in respect of one (1) download of such Music Track. 4.7 In addition to the other rights granted in this clause 4 you hereby grant to us the right to make available certain Content in order to promote and advertise Giagboxx Limited and/or Gigaboxx.comp rovided always that we shall not make any Content available to consumers during promotions so that consumers may retain permanent copies of such Content. 5. Hosting 5.1 You acknowledge and agree that Internet servers and links are susceptible to crashes and downtime. We shall maintain a consistent link with the Internet but we cannot and do not warrant that we shall maintain a continuous and uninterrupted link. 5.2 We shall endeavour to ensure that Gigaboxx.com is available 100% of the time. Notwithstanding the foregoing we may, in our sole discretion, temporarily suspend operation of Gigaboxx.com for the purpose of repair, maintenance and improvement of any of our systems. We will, if practicable, notify you in advance of any such suspension and shall restore operations as soon as reasonably practicable. You shall not be entitled to any set off, discount, refund or other credit in the case of any outage which is beyond our reasonable control or which is caused by failure of hardware, software or services not delivered by us. 5.3 We shall not take any full weekly or daily incremental back-ups of any Content hosted by us and shall not be providing any disaster recovery facilities whatsoever. ACCORDINGLY YOU ARE SOLELY RESPONSIBLE FOR KEEPING AND MAINTAINING BACK-UP COPIES OF ANY AND ALL CONTENT UPLOADED BY YOU TO GIGABOXX.COM AND WE ACCEPT NO LIABILITY IN THE EVENT OF CONTENT LOST AS A RESULT OF A FAILURE BY YOU TO MAINTAIN SUCH BACK-UP COPIES. 6. Blogs, Chat Rooms and Forums 6.1 Gigaboxx.com may include blogs, chat rooms and/or discussion forums that you are able to contribute to. Whilst we encourage you to contribute whatever material you wish to these blogs, chat rooms and/or discussion forums, you must: (a) not submit any confidential, defamatory, offensive, infringing, obscene, indecent or otherwise unlawful or objectionable material or information nor use Gigaboxx.com for any chain letters, junk mail, ‘spamming’ material or any other form of bulk communication; (b) not submit any material which is prohibited by the Data Protection Act 1998 or any other applicable data protection or privacy legislation; (c) only upload or submit material to Gigaboxx.com which either you own or which you have the express permission of the owner of that material to submit it to Gigaboxx.com. 6.2 YOU AGREE THAT YOU SHALL INDEMNIFY US AGAINST ANY LOSS, LIABILITY, CLAIM, DAMAGE OR EXPENSE INCURRED BY US ARISING OUT OF ANY BREACH BY YOU OF CLAUSE 6.1 ABOVE. 6.3 You acknowledge that we do not actively monitor the content of any blog, chat room or discussion forum, but if we are informed or if we suspect that any material contained on any blog, chat room or discussion forum infringes the intellectual property or other proprietary rights of any third person or is otherwise unlawful, then we shall have the right to immediately remove such material from the Gigaboxx.com site. 7. Royalties, Reporting and Accounting 7.1 We will pay to you a royalty on sales of Music Tracks to consumers via Gigaboxx.com(the “Royalty”) and the rate of the Royalty as applicable to the service selected by you - Starter, or Pro. For the avoidance of doubt, we will only account to you in either Sterling. 7.2 The Royalty will be calculated on the gross monies actually and directly received by us in respect of the sale of Music Tracks to consumers. All Royalties paid out to you will be subject to the following deductions: any applicable taxes including without limitation all sales and withholding or similar taxes, delivery costs, and credit card, telecom operator fees, handling or other micro payment fees. 7.3 You are responsible for any and all payments to the Mechanical Copyright Protection Society (“MCPS”) or any other local equivalent including, without limitation, the Harry Fox Agency and/or GEMA and/or SACEM. In the event that we can process these royalties on your behalf, Gigaboxx Limited will notify you and make appropriate the deductions. 7.4 Notwithstanding anything set out in these Terms of Use to the contrary we shall not be required to account to you in any accounting period, as applicable, where the Royalty due is less than: (a) Service Level: Fifty pounds (£50) Sterling. For the avoidance of doubt, payments will be distributed when your gross Royalty (the amount shown in your Account Manager) has reached the above amount, the actual amount paid to you will be the gross Royalty minus the applicable deductions listed in clause 7.2 7.5 You must be a registered PayPal user in order to receive Royalties due. YOU MUST BE A REGISTERED PAYPAL USER BEFORE WE CAN MAKE PAYMENT OF ANY ROYALTIES DUE HEREUNDER. 7.6 Any payments due over £500 (five hundred pounds) or the equivalent in Euros or US Dollars, are subject to identity confirmation. In the UK, payments of £500 or more will be made by bank transfer only. If you are located outside of the UK, once your identity has been confirmed to our satisfaction in our sole discretion, a suitable payment mechanism will be agreed between us. 7.7 For the avoidance of doubt we will not be liable for any interest or other charges whatsoever for late payment of Royalties in the event that you have failed to provide appropriate PayPal account or other requested details to us. 7.8 Royalties are paid 60 days after the end of each calendar quarter. 7.9 Any and all statements of payment delivered by us to you in respect of Royalties shall be deemed final and binding in the event that they remain unchallenged after one (1) year from the date of issue. 8. Intellectual Property Rights 8.1 Any and all intellectual property rights (including any patent, copyright, database rights, registered design, trademark, trade name, logos, service marks, know-how or industrial or intellectual property right subsisting anywhere in the world and any applications to protect any of the above) and goodwill in and relating to Gigaboxx.com or the content, material or information provided through Gigaboxx.com(excluding only Content uploaded by you) (the “Intellectual Property Rights”) are either owned by or licensed to us. Except as expressly provided for in these Terms of Use, we do not grant you any right to use any such Intellectual Property Rights and nothing in these Terms of Use shall be construed so as to transfer or license any such Intellectual Property Rights to you. 9. Suspension or Termination of Gigaboxx.com 9.1 We expressly reserve the right at any time, for any reason whatsoever and in our sole discretion to: (a) limit or suspend your access to Gigaboxx.com in the event that we suspect or are notified that you have uploaded and made available Content which infringes the rights of any third party or you are otherwise in breach of these Terms of Use; and/or (b) terminate your user account in the event that you have uploaded and made available Content which infringes the rights of any third party or you are otherwise in breach of these Terms of Use. 9.2 In the event of suspension by us pursuant to 9.1(a) above we shall be entitled to suspend any and all reporting and accounting obligations hereunder pending resolution of any claim of infringement or suspected breach by you. 9.3 For the avoidance of doubt, in the event of termination by us pursuant to 9.1(b) above we shall be under no obligation to refund to you any part of your annual fee and shall only be liable to account to you for Royalties due in respect of non-infringing items of Content. 10. Warranties, Disclaimers & Indemnities 10.1 The content available through Gigaboxx.com is provided by third parties and is not in any way endorsed by us and we do not give any warranty or representation as to the artistic merit of such content. Furthermore, most of the materials and information contained in Gigaboxx.com from third party partners and/or subscribers and we do not guarantee the accuracy, completeness, currency or reliability of any such materials or information. 10.2 We will use our reasonable endeavours to ensure that any content which you purchase from us will be available for you to download immediately following your payment. Other than that, Gigaboxx.com is provided on an “as is” basis without warranty of any kind, either express or implied and all other conditions, statements and warranties (including, but not limited to, any implied warranty of merchantability of Gigaboxx.com or of the fitness for a particular purpose of indiestore.com) are hereby excluded to the fullest extent permitted by law. Without limiting the foregoing, we make no warranty that Gigaboxx.com or any content downloaded by you will meet your requirements. 10.3 Gigaboxx.com may contain links to third party websites that are not under our control and are provided to you for your convenience only. We make no warranties or representations whatsoever about any other website which you may access through indiestore.com. Without limiting the foregoing, these sites are in no way approved, vetted, checked or endorsed by us and you agree that we shall not be responsible or in any way liable for the content, accuracy, compliance with relevant laws or accessibility of any information, data, advice or statements or for the quality of any products or services available on such sites. If you choose to access a website beyond our control, you do so at your own risk. In addition, use of any such third party website may be subject to your acceptance of additional terms and conditions. 10.4 You hereby specifically warrant and represent that you are free to enter and agree to these Terms of Use and that you are the owner or exclusive licensee of any and all rights in any and all Content uploaded to and made available on Gigaboxx.com and that no Content shall: (a) infringe the intellectual property rights (including by way of unlicensed sampling) or any other rights of any third party; (b) be offensive, insulting, defamatory, obscene, indecent, objectionable religiously or racially prejudicial or otherwise inappropriate or otherwise be in breach of these Terms of Use, all decisions made by Gigaboxx.com whether Content violates this clause shall be final; (c) not contain any viruses, worms, Trojan horses, bugs or any other computer code designed to (i) disrupt, disable, harm, or otherwise impede in any manner the operation of a computer program or computer system or (ii) damage or destroy any data files residing on a computer system without the user’s consent. 10.5 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS US AND GIGABOXX LIMITED, OUR AFFILIATES, AND ANY RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, AND THIRD PARTY PROVIDERS TO GIGABOXX.COMFROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM ANY VIOLATION OF THESE TERMS OF USE BY YOU. WE RESERVE THE RIGHT TO ASSUME, AT OUR SOLE EXPENSE, THE EXCLUSIVE DEFENCE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENCES. 11. Liability and Disclaimers 11.1 Nothing in these Terms of Use shall be construed as an attempt to limit or exclude our liability in respect of: (a) death or personal injury caused by our negligence; (b) any loss suffered by you as a result of your reliance on any fraudulent misrepresentation made by us to you; (c) or any other liability which cannot be so limited or excluded at law. 11.2 SUBJECT TO CLAUSE 11.1 above, YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY INDIRECT LOSS, CLAIM OR DAMAGE, OR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOST SAVINGS OR LOSS OR CORRUPTION OF DATA) OR ANY LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT) IN EACH CASE WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH: (a) ANY USE OF GIGABOXX.COM OR ITS CONTENTS; (b) ANY FAILURE OR DELAY IN THE USE OF ANY COMPONENT OF GIGABOXX.COM INCLUDING, WITHOUT LIMITATION, ANY UNAVAILABILITY OF GIGABOXX.COM IRRESPECTIVE OF DURATION OF ANY PERIOD OF UNAVAILABILITY; OR (c) ANY USE OF OR RELIANCE UPON ANY CONTENT, INFORMATION, MATERIAL, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH GIAGBOXXCOM. IN ALL CASES EVEN IF WE HAVE BEEN FOREWARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 11.3 Without limiting the effect of clause 11.2, due to the inherent risks of using the Internet, we cannot be liable for any damage to, or viruses that may infect, your computer equipment or any other property when using or browsing indiestore.com. The downloading or other acquisition of any materials or information through Gigaboxx.com is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system or any loss of data that results from the downloading or acquisition of any such materials. 11.4 To the extent that our liability is not excluded by the foregoing provisions of this clause our liability to you in connection with the provision of Gigaboxx.com or any content available for download (whether arising in contract, tort (including negligence) or otherwise) is limited to refunding the purchase price paid by you for the particular instance of use of Gigaboxx.com that gave rise to that liability. 11.5 You agree that you shall indemnify us against any claims or legal proceedings which are brought or threatened against us by a third party because your use of Gigaboxx.com or submission of material to Gigaboxx.com is in breach of these Terms of Use. 12. No Waiver 12.1 Any failure or delay by us to enforce any of our rights under these Terms of Use is not to be taken as or deemed to be a waiver of that or any other right unless we acknowledge and agree to such a waiver in writing. 13. Third Party Rights 13.1 These Terms of Use are not intended to be for the benefit of, and shall not be exercisable, by any person under the Contracts (Rights of Third Parties) Act 1999 or otherwise. 14. Severability 14.1 If any clause or part of a clause of these Terms of Use is, or becomes, invalid, illegal or unenforceable, then that clause or part of a clause shall be deemed to be deleted from these Terms of Use. Any such deemed deletion shall not affect the validity, legality or enforceability of the remainder of these Terms of Use. 15. Entire Agreement 15.1 The warranties, exclusions and the other express provisions of these Terms of Use set out the full extent of our obligations and liabilities concerning its subject matter and supersede any previous agreements between the parties relating thereto. Subject to clause 10.1 above, you shall have no remedy in respect of any untrue statement made to you upon which you relied in entering into these Terms of Use other than any remedy you may have for breach of the express terms of these Terms of Use. 16. Governing Law and Jurisdiction 16.1 These terms and conditions and the use of or any dealings in respect of the website or the company reports shall be governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.