PLEASE READ THIS SUBSCRIBER AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE USING THE SERVICES. BY USING THE WEBSITE HTTP://HYPEM.COM (THE "SITE") YOU SIGNIFY YOUR ASSENT TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE ANY RIGHT TO USE THE SERVICES. THE HYPE MACHINE'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY THE HYPE MACHINE, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The purpose of the Site, owned and operated by The Hype Machine Inc. ("Hype Machine"), a Delaware corporation, is to compile new music tracks from the blogosphere. Hype Machine tracks MP3 blogs and add links to tracks featured by those blogs so that users can discover new artists and music, preview tracks, and link to merchant sites to buy music they like (the "Services"). The Site is accessed by you ("User" or "you") under the following terms and conditions:
1. ACCESS TO THE SERVICES. Subject to the terms and conditions of this Agreement, Hype Machine may offer to provide the Services, as described more fully on the Site, and which are selected by you, solely for your own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services Hype Machine performs for you, as well as the offering of any materials displayed or performed on the Site (including, but not limited to audio clips, video clips, text, graphics, photographs, images, and illustrations, also known as the "Content") on the Site. Hype Machine may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or Content. Hype Machine may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Hype Machine reserves the right, at its discretion, to modify this Subscriber Agreement or the price or charge for any Service or Content at any time by posting a notice on the Site, or by sending you a notice via e-mail or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Subscriber Agreement as modified.
2. You certify to Hype Machine that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Site, and take full responsibility for the selection and use of the Services and access of the Site. The Site and the Services are controlled and operated by Company from its offices within the State of New York. Company makes no representation that materials on the Site or through the Services are appropriate or available for use in other locations. Those who choose to access or use the Services from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Services from jurisdictions where the contents or practices of the Services are illegal, unauthorized or penalized is strictly prohibited. This Agreement is void where prohibited by law, and the right to access the Site is revoked in such jurisdictions.
3. Hype Machine will use reasonable efforts to ensure that the Site and Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Site and/or Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Hype Machine to minimize such disruption where it is within Hype Machine's reasonable control. YOU AGREE THAT NEITHER THE HYPE MACHINE NOR THE SITE WILL BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE, THE SERVICES, YOUR ACCOUNT OR OTHER CONTENT.
4. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
5. SITE CONTENT. Subscriber may preview audio Content and other items displayed on the Site for personal use only. Subscriber shall not download or store audio Content from the Site. Subscriber may purchase audio Content available on the Site by using the merchant links that appear next to most tracks. Copying, downloading or storing of any Content is expressly prohibited without prior written permission from the Hype Machine, or from the copyright holder identified in such Content's copyright notice.
The Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of (except as provided in this Section of the Subscriber Agreement), reproduce, create derivative works based on, distribute, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services.
6. RESTRICTIONS. You are responsible for all of your activity in connection with the Services and accessing the Site. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Hype Machine user. You shall not use any part of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Site, or any processes that run or are activated while you are not logged in. WARRANTY DISCLAIMER. The Hype Machine has no special relationship with or fiduciary duty to you. You acknowledge that Hype Machine has no control over, and no duty to take any action regarding: which users gain access to the Site; what Content you access via the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Hype Machine from all liability for your having acquired or not acquired Content through the Site. The Site may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Hype Machine makes no representations concerning any content contained in or accessed through the Site, and Hype Machine will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site. THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY LAW, THE HYPE MACHINE DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL OR SERVICES PROVIDED ON THIS SITE. BY USING THIS SITE, YOU ACKNOWLEDGE THAT THE HYPE MACHINE IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SITE; (2) DOWNLOADING CONTENT CONTAINED ON THE SITE; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT POSTED ON THE SITE; (4) THE TEMPORARY OR PERMANENT INABILITY TO ACCESS OR RETRIEVE ANY CONTENT FROM THE SITE, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY COMMUNITY AREA OF THE SITE; AND (6) UNAUTHORIZED DISCLOSURE OF INFORMATION, IMAGES OR OTHER CONTENT THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT.
7. THIRD PARTY WEBSITES. Users of the Site may gain access from the Site to third party sites on the Internet through hypertext or other computer links on the Site. Third party sites are not within the supervision or control of Hype Machine or the Site. Unless explicitly otherwise provided, neither Hype Machine nor the Site makes any representation or warranty whatsoever about any third party site that is linked to the Site, or endorse the products or services offered on such site. The Hype Machine and the Site disclaim: (a) all responsibility and liability for content on third party websites and (b) any representations or warranties as to (i) the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and (ii) the functionality of third party sites if you export Content or other information onto them. You hereby irrevocably waive any claim against the Site or Hype Machine with respect to such sites and third party content.
8. REGISTRATION AND SECURITY. As a condition to using certain Services, you may be required to register with Hype Machine and select a password and username. You shall provide Hype Machine with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as your username the name of another person with the intent to impersonate that person; or (ii) use as your username a name subject to any rights of a person other than you without appropriate authorization. The Hype Machine reserves the right to refuse registration of, or cancel a username in its discretion. You shall be responsible for maintaining the confidentiality of your Hype Machine password.
You hereby irrevocably authorize Hype Machine to disclose your personally identifiable information at the request of any state or federal agency or in response to any judicial process (including, without limitation, a subpoena).
9. INDEMNITY. You will indemnify and hold Hype Machine, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, your violation of this Agreement, or your infringement, or the infringement by any third party using your account, of any intellectual property or other right of any person or entity. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE HYPE MACHINE BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING, TRANSMITTING, DISTRIBUTING, PERFORMING OR DISPLAYING CONTENT. THE HYPE MACHINE'S AND THE SITE'S COLLECTIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THREE HUNDRED UNITED STATES DOLLARS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. FEES AND PAYMENT. Some of the Services may require payment of fees. You shall pay all applicable fees, as described on the Site in connection with such Services you select. The Hype Machine reserves the right to change its pricing and to institute new charges at any time, upon ten (10) days prior notice, which may be sent by e-mail or posted on the Site. TERMINATION. Either party may terminate the Services at any time by notifying the other party by any means. The Hype Machine may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable. Upon termination of your account, your right to use the Services, access the Site and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
Copyright 2009 The Hype Machine Inc. All rights reserved.
The Hype Machine has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). It is Hype Machine's policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders. If you believe that Content residing on or accessible through the Hype Machine Site or Service infringes a copyright, please send a notice of copyright infringement by facsimile, regular mail, or e-mail to the Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent"):
The Hype Machine Inc.
Attn: Copyright Agent
30 Monroe Place, #2A
Brooklyn, NY 11201
The message must containing the following information:
• A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
• Identification of the Content that is claimed to be infringing including specific URLs of the Content that the copyright owner seeks to have removed ;
• Contact information about the notifier including address, telephone number and, if available, e-mail address;
• A statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law; and
• A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once proper infringement notification is received by the Designated Agent, it is Hype Machine's policy to remove or disable access to the infringing Content and to notify the Content provider or user that it has removed or disabled access to the Content; that repeat offenders will have the infringing Content removed from the Service and that Hype Machine will terminate such content provider's or user's access to the Site and the Service.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: http://www.copyright.gov/legislation/dmca.pdf
To file a counter notification with Hype Machine, the user must provide the following items to us in writing:
• The specific URLs of material that Hype Machine has removed or to which Hype Machine has disabled access.
• User's name, address, telephone number, and email address.
• A statement that the user consents to the jurisdiction of Federal District Court for the judicial district in which your address is located (or New York County, New York if your address is outside of the United States), and that User will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
• The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
• User's signature.
Send the written communication to the following address:
The Hype Machine Inc.
30 Monroe Place, #2A
Brooklyn, NY 11201
Attn: DMCA Counter-Notification
After we receive the user's counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes the user's personal information. By submitting a counter-notification, the user consents to having his or her information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on Hype Machine. If we receive such notification we will not display, distribute or otherwise exploit the material. If we do not receive such notification, we may elect to do so.