digencore.com including any connected mobile application or version thereof (the “Site”), is an online service operated on the World Wide Web of the Internet, consisting of certain services and content provided Digital Encore LLC and/or its parent, affiliated and subsidiary companies (each, an “Affiliate”) and third parties.
- General. This End User Agreement (the “Agreement”), sets forth the terms and conditions that apply to use of the Site by each end user thereof (“End User”). By using the Site (other than to read this Agreement for the first time), End User agrees to comply with all of the terms and conditions hereof. The right to use the Site is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User’s password(s), if any. End User shall be fully responsible for the use of the Site by any other person it permits to access the Site. DIGITAL ENCORE shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment needed for access or use.
- Changed Terms. DIGITAL ENCORE shall have the right at any time to change or modify the terms and conditions applicable to End User’s use of the Site, or any part thereof, or to impose new conditions, including, but not limited to, requiring user registration, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which End User obtains notice thereof. Any use of the Site by End User after such notice shall be deemed to constitute acceptance by End User of such changes, modifications or additions, unless the End User notifies DIGITAL ENCORE in writing that it has terminated this Agreement within five (5) business days of receipt by the End User of such notice, in which case the End User’s conduct shall be deemed governed by the Agreement without such changes, modifications or additions.
- Equipment. End User shall be responsible for obtaining and maintaining all equipment needed for access to and use of the Site and all charges related thereto.
- End User Conduct. (A) End User shall use the Site for non-commercial, lawful purposes only. End User shall not post or transmit through the Site any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law, or which, without DIGITAL ENCORE’s express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by End User that in DIGITAL ENCORE’s discretion restricts or inhibits any other End User from using or enjoying the Site will not be permitted. Without limiting the foregoing, prohibited conduct includes, but is not limited to, (1) distribution of unsolicited chain letters, (2) propagation of computer worms, viruses and other such malicious code, (3) using (directly or indirectly) the Site or its computer network to make unauthorized entry to any other machine accessible via the Site or its computer network and (4) use of the Site to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users of the Site to become users of other on-line services competitive with the Site. Without limiting any other rights or remedies of DIGITAL ENCORE, violations of the foregoing may result in removal of violative communications and/or early termination of the End User’s access to the Site.
(B) The Site contains copyrighted material, trademarks and other proprietary information that may include, but is not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are copyrighted as a collective work under the United States copyright laws. DIGITAL ENCORE, as between itself and End User, owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial or non-commercial exploitation of downloaded material will be permitted without the express permission of DIGITAL ENCORE and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that it does not acquire any ownership rights by accessing or otherwise using copyrighted material.
(C) End User shall not upload, post or otherwise make available on the Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with End User. End User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of the Site, End User automatically grants, or warrants that the owner of such material has expressly granted DIGITAL ENCORE the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, edit and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other End User to access, view, store or reproduce the material for that End User’s personal use. Please note that DIGITAL ENCORE does not want to receive confidential information from any End User and any information received will be deemed NOT to be confidential.
(D) From time to time, the Site may, at its sole discretion, allow End User to submit certain content including, but not limited to, photos, messages, notes, text, information, music, video, advertisements, listings, or other content (collectively, “User Content”) and make available such User Content on the Site. End User understands that, regardless of whether or not such User Content is published or otherwise made available on the Site, DIGITAL ENCORE in no way guarantees any confidentiality with respect to any User Content.
End User further agree that End User will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless End User is the owner of such rights or has permission from their rightful owner to post the material and to grant the Site all of the license rights granted herein. End User understands and agrees that the Site does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and the Site expressly disclaims any and all liability in connection with User Content.
(E) The foregoing provisions of Section 5 are for the benefit of DIGITAL ENCORE, DIGITAL ENCORE Affiliates and its client companies, third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
- Disclaimer of Warranty; Limitation of Liability (A) END USER EXPRESSLY AGREES THAT USE OF THE SITE IS AT END USER’S SOLE RISK. NEITHER DIGITAL ENCORE, DIGITAL ENCORE AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, CLIENT COMPANIES, THIRD PARTY CONTENT PROVIDERS OR LICENSORS (COLLECTIVELY, THE “DIGITAL ENCORE PARTIES”) WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE SITE.
(B) THE SITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. END USER SPECIFICALLY ACKNOWLEDGES THAT DIGITAL ENCORE IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH END USER. END USER SPECIFICALLY ACKNOWLEDGES THAT DIGITAL ENCORE SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH END USER.
(D) IN NO EVENT WILL DIGITAL ENCORE, THE DIGITAL ENCORE PARTIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SITE OR THE SITE SOFTWARE, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE. END USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SITE.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, DIGITAL ENCORE, NOR THE DIGITAL ENCORE PARTIES SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE SITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE END USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES AND THE AGGREGATE, TOTAL LIABILITY OF THE DIGITAL ENCORE PARTIES TO ANY END USER FOR ALL DAMAGES, INJURY, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SITE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF: (A) THE AMOUNT, IF ANY, PAID BY THE END USER IN CONNECTION WITH THE END USER’S USE OF THE SITE AND RETAINED BY DIGITAL ENCORE OR (B) ONE HUNDRED DOLLARS ($100).
(F) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITY OR WARRANTIES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO END USER. IN SUCH JURISDICTIONS, DIGITAL ENCORE’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Monitoring. DIGITAL ENCORE shall have the right, but not the obligation, to monitor the content of the Site to determine compliance with this Agreement and any operating rules established by DIGITAL ENCORE and to satisfy any law, regulation or authorized government request. Without limiting the foregoing, DIGITAL ENCORE shall have the right to remove any material that DIGITAL ENCORE, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
- Indemnification. End User agrees to defend, indemnify and hold harmless DIGITAL ENCORE, DIGITAL ENCORE Affiliates and its and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Site by End User, inclusive of any claim that User Content in any way causes damage to a third party, except to the extent such claims and expenses arise directly out of the gross negligence of DIGITAL ENCORE.
- Termination. Either DIGITAL ENCORE or End User may terminate this Agreement at any time. Without limiting the foregoing, DIGITAL ENCORE shall have the right to immediately terminate any passwords or accounts of End User in the event of any conduct by End User which DIGITAL ENCORE, in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 5, 6, 8, 10, and 12 shall survive termination of this Agreement.
- Trademarks. Trademarks appearing on the Site are the property of DIGITAL ENCORE, DIGITAL ENCORE Affiliates, or their respective owners.
- Third Party Content. DIGITAL ENCORE is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, DIGITAL ENCORE has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, End Users or any other user of the Site, are those of the respective author(s) or distributor(s) and not of DIGITAL ENCORE. Neither DIGITAL ENCORE nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.) In many instances, the content available through the Site represents the opinions and judgments of the respective information provider, End User, or other user not under contract with DIGITAL ENCORE. DIGITAL ENCORE and the DIGITAL ENCORE PARTIES neither endorse nor are responsible for the accuracy or reliability of any opinion, advice or statement made on the Site. Under no circumstances will DIGITAL ENCORE or the DIGITAL ENCORE PARTIES be liable for any loss or damage caused by an End User’s reliance on information obtained through the Site. It is the responsibility of End User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site.
- Miscellaneous. This Agreement (which hereby incorporates by reference any other provisions applicable to use of the Site, including, but not limited to, any supplemental terms governing the use of certain specific material contained in the Site and any operating rules for the Site established by DIGITAL ENCORE) constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
DMCA Notice. (A) DIGITAL ENCORE owns, protects and enforces copyrights in its own creative material and respects the copyrighted properties of others. Materials may be made available on or via the Site by third parties not within the control of DIGITAL ENCORE. It is our policy not to permit materials known by us to be infringing to remain on this site. If End User is a copyright owner or an agent thereof and believe that any User Content, or other content, infringes upon End User’s copyrights, End User may submit a notification pursuant to the Digital Millennium Copyright Act of 1998, as amended (the “DMCA”) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) the physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) identification of the User Content, or other content, that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) information reasonably sufficient to permit the service provider to contact End User, such as an address, telephone number, and, if available, an electronic mail address;
(v) a statement that you have a good faith belief that use of the User Content, or other content, in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that End User is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Pursuant to the DMCA 17 U.S.C. 512 (c), DIGITAL ENCORE has designated the Chief Legal Officer and General Counsel of DIGITAL ENCORE, LLC, the parent company of DIGITAL ENCORE, as its agent (“Agent”) for notification of claims of copyright infringement with respect to information residing, at the direction of a user, on the Site Web site. The Agent contact information is: DIGITAL ENCORE, LLC c/o Chief Legal Officer/ General Counsel, 498 7th Avenue, 19th Floor, New York, NY 10018, email: firstname.lastname@example.org.
For purposes of clarification, solely DMCA notices should go to the Agent; all other feedback, comments, requests for technical support, and other communications should be directed as set forth at the beginning of this Agreement. End User expressly acknowledges that if End User fails to comply with all of the requirements of this Section 14, End User’s DMCA notice may not be valid.
(B) If End User believes that End User’s User Content, or other content, that has been removed (or to which access was disabled) is not infringing, or that End User has authorization from the actual copyright owner, the copyright owner’s agent, or pursuant to law, to submit, post and make use of such User Content, or other content, End User may send a counter-notice containing the following information to the Agent:
(i) End User’s physical or electronic signature;
(ii) identification of the User Content, or other content, that has been removed or to which access has been disabled and the location at which the User Content, or other content appeared on the Site prior to the point at which such User Content, or other content, was removed or disabled;
(iii) a statement that End User has a good faith belief that the User Content, or other content, was removed or disabled as a result of mistake or a misidentification of the User Content, or other content; and
(iv) End User’s name, address, telephone number, and, if available, an electronic mail address, a statement that End User consents to the jurisdiction of the federal court in New York, New York, and a statement that End User will accept service of process from the party that provided notification of the alleged infringement.
If a counter-notice is received by the Agent, the Site may send a copy of such counter-notice to the original complaining party informing such party that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Site’s sole discretion.
(C) The Site suggests that you consult your legal advisor before filing a notice or counter-notice. Please also be aware that there can be penalties for false claims under the DMCA.