Last updated: April 11, 2011
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE.
These terms and conditions of use ("Site Terms") apply to your use of this website (the "Site"), and do not alter in any way the terms or conditions of any other agreement you may have with Downtown Music LLC, Downtown Music Publishing LLC, dms.FM or any of their respective subsidiaries or affiliates. By using this Site, you represent and warrant that you are over the age of 18 and are lawfully able to accept these Site Terms. If you are using the Site on behalf of any entity, you further represent and warrant that you are authorized to accept these Site Terms on such entity's behalf, that such entity shall be included in the definition of “you” for purposes of these Site Terms, and that such entity agrees to indemnify Downtown for violations of these Site Terms.
Ownership of the Site and its Contents
This Site is owned and operated by Downtown Music LLC (“Downtown” or “us”). Unless otherwise indicated, all of the content featured or displayed on this Site, including, but not limited to, text, graphics, data, photographic images, moving images, musical compositions, sound recordings, trademarks, illustrations, software, and the selection and arrangement thereof ("Downtown Content"), is owned or controlled by Downtown, its licensors, clients, content providers and registered users. All elements of the Site, including the Downtown Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.
Use of the Site
This Site and the Downtown Content are intended only for current and potential licensees, content providers, and other business partners of Downtown. We require all potential users to complete an online application providing their/their company’s name, contact information, type of business, and other relevant information we use to consider your application. We may contact you to request additional information or to discuss your application, and we may ultimately accept or reject any application or further access to the Site in our sole and absolute discretion.
Once registered, you will have access to additional Downtown Content, which may include at our discretion the ability to stream and/or download sound recordings. You acknowledge and agree that you will acquire no ownership of any Downtown Content and that your access to such recordings and any other Downtown Content is pursuant to a revocable and limited personal, non-transferable, non-sublicensable license intended solely for your evaluation of bona fide potential business opportunities with Downtown. You may not use this Site or the Downtown Content for any purpose not related to your business with Downtown. You are specifically prohibited from:
(a) downloading, copying, distributing, or re-transmitting any or all of the Site or the Downtown Content (including without limitation to persons outside your company or organization) without, or in violation of, a written license or other agreement with Downtown;
(b) using any data mining, robots or similar data gathering or extraction methods;
(c) manipulating or otherwise displaying the Site or the Downtown Content by using framing or similar navigational technology;
(d) registering, subscribing, unsubscribing, or attempting to register, subscribe, or unsubscribe any party for any Downtown product or service if you are not expressly authorized by such party to do so; and
(e) otherwise using the Site or the Downtown Content other than for its intended purpose. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws, the laws of privacy and publicity, and applicable communications regulations and statutes.
You represent and warrant that you will comply with all applicable laws and regulations, including, without limitation, those relating to the Internet, data, e-mail, privacy, and the transmission of technical data exported from the United States or the country in which you reside. Your violation of these Site Terms may cause Downtown and its licensors immediate and irreparable harm that may not be compensable by monetary damages alone; therefore, you agree that in case of your threatened or actual violation, Downtown and/or its licensors may obtain immediate injunctive or other equitable relief without the need to post a bond.
Copyright Infringement Policy
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, Downtown has adopted a policy of terminating, in appropriate circumstances and at Downtown's sole discretion, the accounts of users who infringe the intellectual property rights of Downtown or any third party.
If you believe that any material on the Site infringes upon any copyright that you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
c/o Downtown Music LLC
485 Broadway 3rd Floor
New York, NY 10013
Your notice should include the following information: (a) an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) a description of where the material that you claim is infringing is located on the Site; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. We may give notice of a claim of copyright infringement by means of a general notice on the Site, electronic mail to a user's e-mail address, or by written communication sent by first-class mail to a user's address.
Downtown Music Services, dms.FM, Downtown, the Downtown logo, and any other trademarks, service marks, product or service names or slogans contained in the Site are trademarks of Downtown or its affiliates, suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Downtown or the applicable trademark holder. You may not use metatags or any other "hidden text" utilizing "Downtown", “dms.FM” or any other name, trademark or product or service name of Downtown or its affiliates without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Downtown and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
You may not use Downtown’s name, logo or other proprietary mark or graphic of Downtown to link to this Site without the express written permission of Downtown. Further, you may not frame any Downtown trademark, logo or other proprietary information, including the Downtown Content, without Downtown's express written consent. Downtown makes no claim or representation regarding, and accepts no responsibility for, directly or indirectly, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Site, or websites linking to the Site. Such sites are not under the control of Downtown and Downtown is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Downtown provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Downtown of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site. Your participation, correspondence or business dealings with any third party found on or through the Site, regarding the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that Downtown shall not be responsible or liable for any loss, damage or other matters of any sort incurred as the result of any such dealings.
Registration Data and Account Security
In consideration of your use of the Site, you agree to: (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain and promptly update the Registration Data, and any other information you provide to Downtown, to keep it accurate, current and complete; (c) maintain the security of your password and identification; (d) notify Downtown immediately of any unauthorized use of your account or other breach of security; (e) accept all responsibility for any and all activities that occur under your account; and (f) accept all risks of unauthorized access to the Registration Data and any other information you provide to Downtown.
You agree to defend, indemnify and hold harmless Downtown, its parent company, subsidiaries, affiliates, licensors, employees, representatives, agents, shareholders, third party information providers and independent contractors immediately upon demand against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any Registration Data or any other content that you post, store or otherwise transmit on or through the Site or otherwise provide to Downtown, your conduct, your use of or inability to use the Site, your breach or alleged breach of the Site Terms or of any representation or warranty contained herein, your unauthorized use of the Downtown Content, or your violation of any rights of another.
THIS SITE AND THE DOWNTOWN CONTENT ARE PROVIDED "AS IS" AND DOWNTOWN AND ITS PARENT COMPANY, SUBSIDIARIES, LICENSORS, DIRECTORS, EMPLOYEES, CONTENT PROVIDERS, REPRESENTATIVES, AGENTS, SHAREHOLDERS AND AFFILIATES EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. DOWNTOWN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE DOWNTOWN CONTENT, OR THE UNAVAILABILITY OF THE SAME, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON OR IN THE MATERIALS OF THIS SITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU, NOT DOWNTOWN, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS SITE OR THE DOWNTOWN CONTENT. WE MAKE NO WARRANTY THAT THE SITE OR THE DOWNTOWN CONTENT IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
Downtown uses reasonable efforts to ensure the accuracy, correctness and reliability of the Downtown Content, but we make no representations or warranties as to the Downtown Content's accuracy, correctness or reliability. Content types (including genres, sub-genres and categories and sub-categories and the like) and descriptions are provided for convenience, and you acknowledge and agree that Downtown does not guarantee their accuracy.
Downtown offers the Downtown Soundtrack Service to evaluate musical material on the Site. Downtown explicitly disclaims any responsibility for the content or availability of information contained in the search index or directory. Downtown also disclaims any responsibility for the completeness or accuracy of any directory or search result. You understand that by using the Site, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Site at your sole risk and further agree that Downtown shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
Some U.S. states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions.
Limitation of Liability
IN NO EVENT SHALL DOWNTOWN, ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, LICENSORS OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, THE SERVICES, THE DOWNTOWN CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM DOWNTOWN, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO DOWNTOWN'S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DOWNTOWN, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO DOWNTOWN FOR ACCESS TO OR USE OF THE SITE.
Applicable Law and Venue
The Site is hosted and operated in the United States and Downtown and its licensors make no representation that any Downtown Content is appropriate for access outside of the United States. Those who choose to access the Site from outside the United States do so on their own initiative and are responsible for compliance with U.S. and local laws. THESE SITE TERMS ARE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS, AND ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE SITE OR THE DOWNTOWN CONTENT SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF, AND SHALL BE BROUGHT SOLELY IN, THE FEDERAL AND STATE COURTS SITTING IN NEW YORK COUNTY, NEW YORK, U.S.A., AND YOU CONSENT AND SUBMIT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS. THE FOREGOING SHALL NOT PREVENT DOWNTOWN FROM JOINING YOU IN ANY LITIGATION WITH A THIRD PARTY INITIATED BY OR AGAINST DOWNTOWN. Termination Notwithstanding any of these Site Terms, Downtown reserves the right, without notice and in its sole discretion, to terminate your account and/or to block your use of the Site for any reason or no reason in its sole and absolute discretion.
Any waiver of any provision of the Site Terms will be effective only if in writing and signed by Downtown. If any clause in these Site Terms is found to be unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect. Any rights not expressly granted herein are reserved.
Changes to Site Terms
Downtown reserves the right to change any of the terms and conditions contained in the Site Terms or any policy or guideline of the Site, at any time and in its sole discretion. When we make changes, we will revise the "last updated" date at the top of the Site Terms. Any changes will be effective immediately upon posting on the Site. Your continued use of the Site following the posting of changes will constitute your acceptance of such changes. We encourage you to review the Site Terms whenever you visit one of our websites.
Questions and Contact Information
Questions or comments about the Site or Site Terms may be directed to Downtown at legal@dms.FM.