1. ACCEPTANCE OF TERMS
Welcome to www.Chilmaza.com. This website is operated by Project Chilmaza, Inc. (“Chilmaza”). Chilmaza provides this site to you subject to the following Terms of Service, as may be updated by us from time to time without notice to you. You can review the most current version of the Terms of Service at any time at: http://www.Chilmaza.com/terms & conditions In addition, when using particular Chilmaza owned or operated services, you shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms of Service. Chilmaza may also offer other services that are governed by different Terms of Service.
BEFORE USING THE Chilmaza WEBSITE, PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE Chilmaza WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TOS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE Chilmaza WEBSITE.
NOTE TO CHILDREN UNDER 13 YEARS OLD: THE Chilmaza WEBSITE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use this site.
2. DESCRIPTION OF SERVICE
Chilmaza is a search engine that allows users to locate digital music files made freely available for streaming on Internet websites. If you are a registered user, the website will also allow you, in accordance with this Agreement, to perform various activities, including creating a profile for yourself, uploading photos, creating blog posts, submitting reviews of content, and communicating with other registered members. The website and any service made available via the website is referred to in this Agreement as the “Service.” As of the date stated above, the Service is provided to you for free, but Chilmaza reserves the right to implement fees for any portion of the Service at any time.
3. YOUR OBLIGATIONS WHEN EMBEDDING A FLASH MUSIC PLAYER ON YOUR WEBSITE
The Chilmaza music player consists of web page code that calls to a copy of the Adobe Flash Player that is already installed on an end user’s computer (the “Player”). You may embed the unmodified code for the Player on your website, your Myspace or other social networking site profile, or any other website. The Player must at all times display the following:
(a) The images and associated text under the Player, as Chilmaza may update from time to time. Currently these are “create a Chilmaza”, “Get This Ringtone”, and “launch standalone player”. The images and text come standard with the code for the Player provided by Chilmaza;
(b) The song title and artist, if available, while streaming the music file using the Chilmaza. This is required because a primary goal of Chilmaza is to provide exposure for music artists and facilitate legal purchase of the artist’s music while allowing fans to enjoy the music. This feature comes standard with the code for the Player provided by Chilmaza; and
(c) Any Chilmaza branding included with the Player.
If you modify the Player in any way, you may lose the ability to embed the Player without warning.
5. PROHIBITED USES OF THE SERVICE
You agree that you will not use the Service to:
reproduce the copyrighted materials of another person;
copy, store, edit, change, prepare any derivative work of or alter in any way any of the tracks streamed through the Service;
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
harm minors in any way;
impersonate any person or entity, including, but not limited to, a Chilmaza official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;
upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; and/or
collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through l above.
7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Further, recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. Please note that you are transferring your personal data to the United States, which does not have the same data protection laws as other countries and by providing us with your personal data you consent to the transfer of your personal data to the United States.
You agree to indemnify and hold Chilmaza and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Service; (ii) your Chilmazas or other Content; (iii) your violation of this TOS; (iv) your violation of the rights of any other person or entity, including claims that any Content infringes or violates any third party intellectual property rights; and (v) your breach of the foregoing representations, warranties, and covenants.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your Chilmaza ID), use of the Service, or access to the Service.
10. GENERAL PRACTICES REGARDING USE AND STORAGE
Chilmaza may establish general practices and limits concerning use of the Service, including without limitation the maximum number of songs that may be included in a Chilmaza, the maximum days that message board postings or other uploaded Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Chilmaza’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You acknowledge and agree that Chilmaza has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that Chilmaza reserves the right to log off accounts that are inactive for an extended period of time. Chilmaza reserves the right to modify these general practices and limits from time to time.
11. MODIFICATIONS TO SERVICE AND TOS
Chilmaza reserves the right at any time and from time to time, with or without notice, to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof). You agree that Chilmaza shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service; or (ii) modify the TOS. Your continued use of the Service after the posting of changes to the TOS constitutes your binding acceptance of such changes. For any material changes to these TOS, such amended terms will automatically be effective thirty days after they are initially posted on the Service.
Your account remains in effect unless you cancel it or unless Chilmaza terminates your account as provided by this Agreement. To terminate your account, you may select the “Delete Account” button in “My Account.” Termination of your account is your sole right and remedy with respect to any dispute with us regarding the Service or this Agreement. We may terminate your account at any time for any reason. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement. Termination of your Chilmaza account may include (a) removal of access to all offerings within the Service, including but not limited to www.Chilmaza.com, Message Boards and other services provided, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of the Service. Chilmaza SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TERMINATION OF YOUR ACCOUNT, ANY ASSOCIATED EMAIL ADDRESS, OR ACCESS TO THE SERVICE. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Chilmaza may have at law or in equity.
16. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including 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 advertiser. YOU AGREE THAT Chilmaza SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE.
From time to time, Chilmaza may offer promotions to website visitors or registered users of the Service. To be eligible for a promotion, you must for the duration of the promotion reside in a jurisdiction in which the promotion is lawful. If you take part in any promotion, you agree to be bound by the specific promotion rules and by the decisions of Chilmaza and its designees, which are final in all matters relating to any promotion. Any awards provided by Chilmaza or our sponsors or partners are at Chilmaza’s sole discretion. Chilmaza and its designees reserve the right to disqualify any entrant or winner in their absolute discretion without notice. Any applicable taxes on any award are the sole responsibility of the winner(s).
The Service may provide, or third parties may provide, links to other sites or content (“Third Party Sites”). Because Chilmaza has no control over Third Party Sites, you acknowledge and agree that Chilmaza is not responsible for the availability of such external sites or resources, and does not endorse and expressly disclaims responsibility or liability for any music files, content, advertising, products or other materials on or available from Third Party Sites. You further acknowledge and agree that Chilmaza shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such music files, content, goods or services available on or through any Third Party Site. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Sites.
15. Chilmaza’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any software provided by Chilmaza in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Chilmaza grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not cause or permit any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Chilmaza for use in accessing the Service. Your use of the Software may be subject to additional license terms presented at the time you download or install the Software.
The Chilmaza service mark, Chilmaza logo, and other Chilmaza trademarks, service marks, logos, and product and service names (collectively the “Chilmaza Marks”) are trademarks or service marks of Project Chilmaza, Inc. Except as expressly provided in these TOS, you agree not to display or use in any manner the Chilmaza Marks without Chilmaza’s prior written permission.
You further acknowledge and agree that content contained in sponsor advertisements or information (“Advertiser Content”) presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Chilmaza or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. You also agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Advertiser Content.
Chilmaza reserves all rights not expressly granted in these TOS. You shall not acquire any right, title or interest to any materials proprietary to Chilmaza, except for the limited rights set forth in this Agreement.
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, Chilmaza AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
b. Chilmaza AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE Chilmaza SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OF SUCH MATERIAL OR DATA.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Chilmaza OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Chilmaza AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Chilmaza HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU.
19. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
Chilmaza may provide you with notices, including those regarding changes to the TOS, in any reasonable manner.
21. GENERAL INFORMATION
Entire Agreement. The TOS and any document incorporated into these TOS by reference constitutes the entire agreement between you and Chilmaza and governs your use of the Service, superseding any prior agreements between you and Chilmaza with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Chilmaza services, affiliate services, third-party content or third-party software.
Choice of Law and Forum. The TOS and the relationship between you and Chilmaza shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Chilmaza agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.
Waiver and Severability of Terms. The failure of Chilmaza to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your Chilmaza account is non-transferable and any rights to your Chilmaza ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Headings. The section titles in the TOS are for convenience only and have no legal or contractual effect.