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This Terms of Use Agreement (the "Terms of Use" or "Agreement") applies to all uses by you of any website, link, e-mail, agent or electronic communication involving or associated with any service or product of Secure Media Delivery, Inc., a Colorado corporation ("Company"), including without limitation, all such items involving the Content, Tracks, Albums, max3s, max3 Upgrades, max3 Links, Forward Links, Forward Points, Tokens and the max3 Platform. Definitions applicable to this Agreement are attached hereto. The max3 Platform is the property of the COMPANY. |
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| 1. | BY USING THE max3 Platform IN ANY MANNER, WHETHER BY NAVIGATION, CLICKING OR INTERACTING AND DOWLOADING ANY PRODUCTS OR SERVICES OFFERED THROUGH OR MADE AVAILABLE IN CONNECTION WITH THE max3 Platform, INCLUDING, WITHOUT LIMITATION, DOWNLOADING, PURCHASING, FORWARDING, EARNING FORWARDING POINTS OR TOKENS, SIGNING UP AS A CUSTOMER OR LISTENING TO ANY CLIP, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE max3 Platform. |
| 2. | COMPANY reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the max3 Platform following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, COMPANY grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the max3 Platform. |
| 3. | Your privilege to use the max3 Platform is limited solely to those privileges specifically set forth herein. You may not use this max3 Platform for any other purposes. |
| 4. | All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, multi-media components, works, recordings, artwork and computer code (collectively, "COMPANY Content"), including but not limited to the design, structure, selection, coordination, expression, and arrangement of such COMPANY Content, contained on the max3 Platform is owned, controlled or licensed by or to COMPANY, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. |
| 5. | Except as expressly provided in these Terms of Use, no part of the max3 Platform and no COMPANY Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without COMPANY's express prior written consent. |
| 6. | All Content, including, without limitation, all text, liner notes, photographs, visual works of art, audio-visual materials, videos, sound recordings, music, music compositions, multi-media components, works, artwork and other works owned by Content Owners and Content Administrators and which is made available for review, for preview, listening, download, sampling, purchasing or distribution in connection with the max3 Platform associated or contained on the max3 Platform is owned and controlled by third-parties and such items are protected by trade-dress copyright, patent and trademark laws and various other intellectual properties and unfair competition laws. Except as expressly provided in these terms of use or separate agreement, no part of the Content may be copied, reproduced, republished, modified, uploaded, downloaded, distributed, performed, displayed, or transmitted in any way or for any purpose without the express prior written consent of the Content Owner or Content Administrator. |
| 7. | You may use information on the max3 Platform (such as data sheets, knowledge base articles, and similar materials) purposely made available by COMPANY for downloading from the max3 Platform, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents. |
| 8. | You may not use any automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the max3 Platform, or any COMPANY Content, or Content or in any way reproduce or circumvent the navigational structure or presentation of the max3 Platform or any COMPANY Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the max3 Platform. COMPANY reserves the right to bar any such activity. |
| 9. | You may not attempt to gain unauthorized access to any portion or feature of the max3 Platform, or any other systems or networks connected to the max3 Platform or to any COMPANY servers, or to any of the services or products offered on or through the max3 Platform. |
| 10. | You may not probe, scan or test the vulnerability of the max3 Platform or any networks connected to the max3 Platform, nor breach the security or authentication measures on the max3 Platform or any network connected to the max3 Platform. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the max3 Platform, or any other customer of COMPANY, including any COMPANY account not owned by you, to its source, or exploit the max3 Platform or any service or information made available or offered by or through the max3 Platform, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the max3 Platform. |
| 11. | You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the max3 Platform or any systems or networks connected to the max3 Platform or to COMPANY. |
| 12. | You agree that you will not take any action that would be considered "spamming" to any other users or anyone outside the users of the max3 Platform. The purpose of forwarding max3 is to create a community of media enthusiasts. The purpose of the max3 forwarding mechanism is not to create undue burden on network systems, be considered "spam" and/or become a nuisance. You agree not to take any action that would be contrary to the foregoing sentences. |
| 13. | You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the max3 Platform or any transaction being conducted on the max3 Platform, or with any other person's use of the max3 Platform. |
| 14. | You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to COMPANY on or through the max3 Platform or any service offered on or through the max3 Platform. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity. |
| 15. | You may not use the max3 Platform or any COMPANY Content or the Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of COMPANY or others, including, without limitation, the rights in and to the Content owned by the Content Owners and Content Administrators. |
| 16. | COMPANY's obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, including, without limitation, contracts with the Content Owners and Content Administrators and nothing on the max3 Platform should be construed to alter such agreements. |
| 17. | COMPANY may make changes to any products or services offered on the max3 Platform, or to the applicable prices for any such products or services or COMPANY's fees for allowing users to participate in and use the max3 Platform, at any time, without notice. The materials on the max3 Platform with respect to products and services may be out of date, and COMPANY makes no commitment to update the materials on the max3 Platform with respect to such products and services. COMPANY is not responsible for Content associated with the max3 Platform or for any actions taken by Content Owners or Customers utilizing the max3 Platform for purposes of marketing, distributing and selling their Content. |
| 18. | Certain features or services offered on or through the max3 Platform may require you to open an account (including setting up a max3 ID and password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify COMPANY immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by COMPANY or any other user of or visitor to the max3 Platform due to someone else using your max3 ID, password or account. |
| 19. | You may not use anyone else's identification, password or account at any time without the express permission and consent of the holder of that identification, password or account. COMPANY cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. |
| 20. | COMPANY's Privacy Policy applies to use of this max3 Platform, and its terms are made a part of these Terms of Use by this reference. Additionally, by using the max3 Platform, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the max3 Platform may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted. |
| 21. | The max3 Platform may contain links to other independent third-party Web sites ("Linked Sites"). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under COMPANY's control, and COMPANY is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites. COMPANY is not responsible for any damages, claims or liability arising by or through the use by you of Sites or any e-mails (including, without limitation, Content or products, Customer sites or e-mail forwarded to or by you containing max3s or related links) received by you or visited by you in connection with the use of the max3 Platform. |
| 22. | COMPANY DOES NOT PROMISE THAT THE max3 Platform OR ANY CONTENT, SERVICE OR FEATURE OF THE max3 Platform WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE max3 Platform WILL PROVIDE SPECIFIC RESULTS. THE max3 Platform AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED ON THE max3 Platform IS SUBJECT TO CHANGE WITHOUT NOTICE. COMPANY CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE max3 Platform WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE max3 Platform AND/OR ANY COMPANY PRODUCTS OR SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE max3 Platform AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST COMPANY FOR DISSATISFACTION WITH THE max3 Platform OR ANY CONTENT IS TO STOP USING THE max3 Platform OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. |
| 23. | The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action. |
| 24. | COMPANY reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the max3 Platform, or any portion of the max3 Platform, for any reason; (2) to modify or change the max3 Platform, or any portion of the max3 Platform, and any applicable policies or terms; and (3) to interrupt the operation of the max3 Platform, or any portion of the max3 Platform, as necessary to perform routine or non-routine maintenance, error correction, or other changes. |
| 25. | Except where prohibited by law, in no event will COMPANY be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if COMPANY has been advised of the possibility of such damages. |
| 26. | If, notwithstanding the other provisions of these Terms of Use, COMPANY is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the max3 Platform or any COMPANY Content, COMPANY's liability shall in no event exceed US Five dollars ($5.00). |
| 27. | You agree to indemnify and hold COMPANY, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys' fees), made against COMPANY by any third party due to or arising out of or in connection with your use of the max3 Platform. |
| 28. | COMPANY may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the max3 Platform, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) COMPANY's rights or property, or the rights or property of visitors to or users of the max3 Platform, including COMPANY's business partners, max3 Platform users, participants, Customers, Content Owners and Content Administrators. COMPANY reserves the right at all times to disclose any information that COMPANY deems necessary to comply with any applicable law, regulation, legal process or governmental request. COMPANY also may disclose your information when COMPANY determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes. |
| 29. | You acknowledge and agree that COMPANY may preserve any transmittal or communication by you with COMPANY through the max3 Platform or any service offered on or through the max3 Platform, and may also disclose such data if required to do so by law or COMPANY determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data or use violates the rights of others, including, infringes upon the included property rights of others, or (4) protect the rights, property or personal safety of COMPANY, its employees, users of or visitors to the max3 Platform, and the public. |
| 30. | You agree that COMPANY may, in its sole discretion and without prior notice, terminate your access to the max3 Platform and/or block your future access to the max3 Platform if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the max3 Platform. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to COMPANY, for which monetary damages would be inadequate, and you consent to COMPANY obtaining any injunctive or equitable relief that COMPANY deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies COMPANY may have at law or in equity. |
| 31. | You agree that COMPANY may, in its sole discretion and without prior notice, terminate your access to the max3 Platform, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the max3 Platform or any service offered on or through the max3 Platform, or (4) unexpected technical issues or problems. |
| 32. | If COMPANY does take any legal action against you as a result of your violation of these Terms of Use, COMPANY will be entitled to recover from you, and you agree to pay, all reasonable attorneys' fees and costs of such action, in addition to any other relief granted to COMPANY. You agree that COMPANY will not be liable to you or to any third party for termination of your access to the max3 Platform as a result of any violation of these Terms of Use. |
| 33. | You agree that all matters relating to your access to or use of the max3 Platform, including all disputes, will be governed by the laws of the United States and by the laws of the State of Colorado without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in City and County of Denver, Colorado, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys' fees. In the event of any controversy or dispute between COMPANY and you arising out of or in connection with your use of the max3 Platform, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law. |
| 34. | You may not use or export or re-export, copy, alter, or distribute any COMPANY Content or Content or any copy or adaptation of such COMPANY Content or Content, or any services offered on the max3 Platform, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations and, copyright laws, trademark laws and any other intellectual property laws. |
| 35. | If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and COMPANY with regard to your use of the max3 Platform, and any and all other written or oral agreements or understandings previously existing between you and COMPANY with respect to such use are hereby superseded and canceled. COMPANY will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. COMPANY's failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by COMPANY of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between COMPANY and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties. |
| 36. | Incorporated herein by this reference are all tutorials, descriptions and other explanatory documents contained on the max3 Platform. To the extent any of the foregoing documents are applicable to your activities on the max3 Platform or in relationship to COMPANY, such documents are also binding upon you and you agree to abide by all terms and conditions contained in such documents. |
