BIG EARS USER AGREEMENT
The following are the terms and conditions for use of BigEarsFestival.com and various other Web sites and web pages operated by Big Ears (“Big Ears”) or its affiliates (collectively, the “Big Ears Web Sites”). This User Agreement applies to the Big Ears Web Sites and does not apply to the content of third parties.
The Big Ears Web Sites are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Big Ears Web Sites constitutes your agreement to all such terms, conditions, and notices. Your use of a particular Big Ears Web Site may also be subject to additional terms, codes of conduct or guidelines that govern use of those sites, including without limitation, particular features or offers (for example, contests or chat areas), and that are outlined on that Big Ears Web Site (the “Additional Terms”).
In the event that any of the terms, conditions, and notices contained herein conflict with the Additional Terms or other terms and guidelines contained within any particular Big Ears Web Site, then these terms shall control.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
Click here to see the Privacy Statement for disclosures relating to the collection and use of your personal information.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
If a particular Big Ears Web Site or any product or service offered on any Big Ears Web Site (each a “Big Ears Site/Service”, and collectively “Big Ears Web Sites/Services”) requires you to open an account, you must complete the registration process by providing Big Ears with current, complete and accurate information as prompted by the applicable registration form. You then will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Big Ears immediately of any unauthorized use of your account or any other breach of security. Big Ears will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Big Ears or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
Big Ears reserves the right to change the terms, conditions, and notices under which the Big Ears Web Sites/Services are offered, including but not limited to the charges associated with the use of the Big Ears Web Sites/Services. You are responsible for regularly reviewing these terms and conditions and additional terms posted on particular websites. Your continued use of the Big Ears Web Sites/Services constitutes your agreement to all such terms, conditions, and notices.
PERSONAL AND NON-COMMERCIAL USE LIMITATION; INTELLECTUAL PROPERTY RIGHTS
Unless otherwise specified, the Big Ears Web Sites/Services are for your personal and non-commercial use. The content available through the Big Ears Web Sites/Services is the property of Big Ears or its licensors and is protected by copyright and other intellectual property laws. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Big Ears Web Sites/Services. You acknowledge that Big Ears retains exclusive ownership of the Big Ears Web Sites/Services and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trademarks or trade secrets with respect to the Big Ears Web Sites/Services or their contents, and Big Ears reserves all rights not expressly granted hereunder. Without the advance express written permission of Big Ears, you may not “meta-search” the Big Ears Web Sites/Services, send, or cause to be sent, any automated queries of any sort to the Big Ears Web Sites/Services, or use the Big Ears Web Sites/Services in any commercial manner. “Automated queries” shall include but not be limited to using any software that sends queries to any Big Ears Web Sites/Services to determine how a web site “ranks” on any Big Ears Web Sites/Services.
LINKS TO THIRD PARTY SITES
Any dealings with third parties (including advertisers) included within the Big Ears Web Sites/Services or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. Big Ears shall not be responsible or liable for any part of any such dealings or promotions.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Big Ears Web Sites/Services, you will not use the Big Ears Web Sites/Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or causes damage to any third party. You may not use the Big Ears Web Sites/Services in any manner that could damage, disable, overburden, or impair any Big Ears Site/Service(s) (or the network(s) connected to any Big Ears Site/Service(s)) or interfere with any other party’s use and enjoyment of any Big Ears Site/Service(s). You may not attempt to gain unauthorized access to any Big Ears Site/Service, other accounts, computer systems or networks connected to any Big Ears Site/Service, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Big Ears Web Sites/Services.
USE OF SERVICES
The Big Ears Web Sites/Services may contain e-mail services, bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable you to communicate with others (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
- Use the Communication Service in connection with surveys, contests, pyramid schemes, chain letters, junk e-mail, spamming or any duplicative or unsolicited messages (commercial or otherwise).
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Engage in speech or other activity that is intended to attack or demean a particular gender, sexual orientation, race, religion, veteran status, age or disability.
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
- Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group because of their belonging to a race, a religion or a nation, or that insults the victims of crimes against humanity by contesting the existence of those crimes.
- Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.
- Use any material or information, including images or photographs, which is made available through the Big Ears Web Sites/Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
- Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
- Use of meta tag searches on the Big Ears Web Sites.
- Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
- Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
- Restrict or inhibit any other user from using and enjoying the Communication Services.
- Violate any code of conduct or other guidelines that may be applicable for any particular Communication Service.
- Harvest or otherwise collect information about others, including e-mail addresses.
- Violate any applicable laws or regulations.
- Create a false identity for the purpose of misleading others.
- Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of a Big Ears Site/Service(s) or other user or usage information or any portion thereof.
Big Ears has no obligation to monitor the Communication Services. However, Big Ears reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. If you are aware of misuse of the Big Ears Web sites/Services, please contact info@BigEarsFestival.com.
Big Ears reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
Big Ears reserves the right at all times to disclose any information as Big Ears deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Big Ears’ sole discretion.
Always use caution when giving out any personally identifiable information about yourself or your children in any Communication Service. Big Ears does not control or endorse the content, messages or information found in any Communication Service and, therefore, Big Ears specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Big Ears spokespersons, and their views do not necessarily reflect those of Big Ears.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
MATERIALS PROVIDED TO BIG EARS OR POSTED AT ANY BIG EARS WEB SITE
Big Ears does not claim ownership of the materials you provide to Big Ears (including feedback and suggestions) or post, upload, input or submit to any Big Ears Site/Service or its associated services for review by the general public, or by the members of any public or private community (each a “Submission” and collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting (“Posting”) your Submission, you are granting Big Ears, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses (including, without limitation, all Big Ears Web Sites/Services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier of a Big Ears Site/Service.
No compensation will be paid with respect to the use of your Submission, as provided herein. Big Ears is under no obligation to post or use any Submission you may provide and Big Ears may remove any Submission at any time in its sole discretion.
By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this User Agreement including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
In connection with your Submissions, you agree that you will not submit material unless you are the owner of the copyrights, applicable trade secrets or other proprietary rights and any other rights including, with out limitation, rights of privacy or publicity, or you have permission from the rightful owner of such rights to post the material and to grant Big Ears all of the licenses and rights required to be granted herein.
You further agree that you will not, in connection with Submissions, submit material that is inappropriate (see the descriptions in Use of Services) or contrary to applicable law or regulations.
NOTIFICATIONS OF MATERIAL THAT VIOLATES THIRD PARTY RIGHTS
Notice: If you are the owner of a copyright or other proprietary rights or an agent thereof and believe that any Submission or other content infringes upon your rights, you may submit a notification by providing us with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the right claimed to have been infringed;
- Identification of the material 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 Big Ears to locate the material;
- Information reasonably sufficient to permit Big Ears to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of such rights or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Big Ears’ designated agent to receive notifications of claimed infringement is: Oslo Cole. For clarity, only infringement claim notices should go to the above address. You acknowledge that if you fail to comply with all of the requirements of this User Agreement, your notice may not be valid.
Counter-Notice. If your Submission was removed and you believe it was not infringing or offensive, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed and the location at which the content appeared before it was removed;
- A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Knoxville, TN and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, Big Ears may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content in 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 Big Ears’ sole discretion.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE BIG EARS WEB SITES/SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE BIG EARS WEB SITES/SERVICES AND TO THE INFORMATION THEREIN. BIG EARS AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE BIG EARS WEB SITES/SERVICES AT ANY TIME, ADVICE RECEIVED VIA THE BIG EARS WEB SITES/SERVICES SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION. BIG EARS AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED WITHIN THE BIG EARS WEB SITES/SERVICES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. BIG EARS AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.
YOU SPECIFICALLY AGREE THAT BIG EARS SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH A BIG EARS SITE/SERVICE. YOU SPECIFICALLY AGREE THAT BIG EARS IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT MUSICIODAY IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN A BIG EARS SITE/SERVICE BY ANY THIRD PARTY.
STORAGE SPACE AND OTHER LIMITATIONS
You agree that Big Ears may establish limits concerning use of any Big Ears Service offered on an Big Ears Web Site, including without limitation the maximum number of days that e-mail messages will be retained by any Big Ears Service, the maximum number of e-mail messages that may be sent from or received by an account on any Big Ears Service, the maximum size of an e-mail message that may be sent from or received by an account on any Big Ears Service, the maximum disk space that will be allotted on Big Ears’ servers on your behalf, and the maximum number of times and duration you may access any Big Ears Service in a given period of time.
You agree that Big Ears has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Big Ears Service. You acknowledge that Big Ears reserves the right to log off accounts that are inactive for an extended period of time.
BIG EARS MAKES NO WARRANTY THAT ANY BIG EARS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
Big Ears reserves the right, in its sole discretion, to terminate your access to any or all Big Ears Web Sites/Services and the related services or any portion thereof at any time, without notice.
Big Ears may also terminate or suspend your access to Big Ears Site/Service(s) for inactivity, which is defined as failing to log into a particular service for an extended period of time, as determined by Big Ears. Upon termination of the Big Ears Site/Service, your right to use the Big Ears Site/Service Immediately ceases.
Big Ears shall have no obligation to maintain any content or to forward any unread or unsent messages to you or any third party.
NO SPAM; DAMAGES
Big Ears will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, because damages are often difficult to quantify, if actual damages cannot be reasonably calculated, then you agree to pay Big Ears liquidated damages of $5 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your account, otherwise you agree to pay Big Ears’ actual damages, to the extent such actual damages can be reasonably calculated.
Some contents and/or services on the Big Ears Web Sites/Services may be offered to you conditioned on your purchase of a subscription or a membership (collectively, a “Subscription”). If you elect to purchase Subscription-based content/services and transmit to Big Ears a Subscription purchase request, you warrant that all Information that you submit is true and accurate (including without limitation your credit card number and expiration date), and you agree to pay all Subscription fees you incur plus all applicable taxes. Your Subscription is personal to you and the members of your household, and you may not transfer or make available your account name and password to others, including without limitation your co-workers. Any distribution by you of your account name and password may result in cancellation of your Subscription without refund and in additional charges based on unauthorized use.
This agreement is governed by the laws of the state of Tennessee, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Knoxville, Tennessee, U.S.A, in all disputes arising out of or relating to the use of the Big Ears Web Sites/Services. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Big Ears as a result of this agreement or use of the Big Ears Web Sites/Services. You agree to indemnify and hold Big Ears, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of your use of or conduct on the Big Ears Web Sites/Services. Big Ears reserves the right to disclose any personal information about you or your use of the Big Ears Web Sites/Services, including its contents, without your prior permission if Big Ears has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Big Ears or Its affiliated companies; (3) enforce the User Agreement; or (4) act to protect the interests of its members or others. Big Ears’ performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Big Ears’ right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Big Ears Web Sites/Services or information provided to or gathered by Big Ears with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Big Ears with respect to the Big Ears Web Sites/Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Big Ears with respect to the Big Ears Web Sites/Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.