Terms of Use

Last Updated: 12/01/11

TERMS OF SERVICE AGREEMENT

Welcome to Bandsintown, which is operated by Bandsintown, Inc. (“BIT”, “we”, “us” or “our”). Please read these Terms of Service (“Agreement”) carefully, as it constitutes legally binding terms and conditions and applies to your use of (a) Bandsintown mobile, web, console, desktop and other applications (e.g., Bandsintown Facebook App, Apple iOS Apps, etc.) (collectively and individually, “BIT App”), (b) the website located www.bandsintown.com and all corresponding web pages and websites associated with the foregoing URL (“Site”) and (c) any other content, applications, features, functionality, information and services offered by us though the BIT App and/or the Site, including, without limitation, viral, embeddable or application/device-based features and related technology (e.g., mobile, web, console, desktop and other APIs, widgets, plugins, applications, etc.) (collectively, "Services"). This Agreement applies whether you are accessing the Services via a wireless or mobile device, a personal computer or any other technology or device (each, a “Device”). This Agreement does not cover other services, websites or any corresponding content, features, and activities made available by any other company or third party, unless specifically stated.

 

            This Agreement applies to all users of the Services, whether or not you have registered for same (“User”, “you” or “your”), and by using the Services you expressly understand, acknowledge and agree to comply with this Agreement and any additional terms and conditions that we provide to you in connection with your use of or access to same, including, without limitation, in connection with related technology (e.g., APIs, widgets, plugins, applications, etc.) and other products and services we may offer or make available to you (“Additional Terms”). The Services may also provide rules of participation for certain activities and services, including, without limitation, contests, sweepstakes and other initiatives (“Rules”). The Services’ Privacy Policy (“Privacy Policy”), the Additional Terms and the Rules are hereby incorporated into this Agreement by reference as though fully set forth herein. To the extent that there is a conflict between this Agreement and the Additional Terms, the Additional Terms shall govern. To the extent that there is a conflict between this Agreement and the specific Rules for the activity in which you choose to participate, the Rules shall govern. To the extent that there is a conflict among this Agreement, the Additional Terms and/or the Rules, the following order of precedence shall apply: first, the Rules, second, the Additional Terms, and third, the Agreement.

1.         Services.

1.1       Fans and Artists. Subject to the terms and conditions of this Agreement, the Services shall enable registered users to access certain features, functionality, information and services provided by us and/or our affiliates, which may include, without limitation, providing (a) users that are fans of live and/or recorded music with the ability to access personalized information and content regarding certain artists and bands, such as notifications and recommendations regarding live concerts, performances, events, tickets, audio-visual content and other related products and services (“Fans”) and (b) users that are bands and artists (and/or their representatives) with the ability to promote, market, display and make certain information and content available to Fans regarding such live concerts, performances, events, tickets, audio-visual content and other related products and services (“Artists”).

1.2       Third Party Platforms. Some of the Services (e.g., the BIT App, etc.) may be dependent on and/or interoperate with third-party owned and/or operated platforms and services (e.g., Apple (iTunes, etc.), Facebook, Twitter, Last.fm, Pandora, etc.) (each, a “Third Party Platform”) and may require that you be a registered member of such Third Party Platforms and provide certain account credentials and other information in order to access such Services. Such Third Party Platforms, in addition to providing application hosting, content distribution, support and other related services, may provide us with certain additional information about you, which may include, without limitation, your email address, legal name, country of residence, location, date of birth, music/artist/band and other preferences and usage data, all as more fully described herein and subject to the terms and conditions hereof, including the Privacy Policy.

2.         Term. This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of or registration for the Services at any time, for any reason, and BIT may terminate your use of or registration to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.

 

3.         Modifications. We may modify this Agreement from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.

4.         Eligibility; Compliance. Use of the Services is limited to users 13 years of age and older.  By using the Services, you represent and warrant that (a) you are 13 years of age or older and (b) your use of the Services does not violate (i) any applicable law, rule or regulation or (ii) any applicable terms, conditions or requirements promulgated by any provider of a Third Party Platform (e.g., Facebook’s Terms of Use, iTunes Store Terms of Use, etc.). Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions. If you are a user between the ages of 13 and 18, please review this Agreement with your parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised for all users under the age of 18. Further, if you provide information that is untrue, inaccurate, not current or incomplete, or BIT suspects that such information is untrue, inaccurate, not current or incomplete, BIT has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in our sole discretion, with or without notice to you, and without liability or obligation to you or any third party.

 

5.         User Registration

 

5.1       In order to access and use certain content, features and functionality of the Services, whether as a Fan or an Artist, we may require that you (a) register for the applicable Services, whether on the Site, a Third Party Platform or otherwise, including, in some instances, creating and/or providing a username and password combination (“User Credentials”) and (b) provide to us and/or make available (e.g., via Third Party Platform permissions and consents, etc.) certain additional information, which may include, without limitation, your email address, legal name, country of residence, location, date of birth, music/artist/band and other preferences, usage data and other information, and, for fee-based transactions and purchases offered by us, your physical address, telephone number(s), applicable payment information (e.g., payment card data, PayPal information, etc.) and other information (collectively, a “User Account”).

 

5.2       You represent and warrant that all registration and account information you submit and/or make available is truthful and accurate and you shall maintain and promptly update the accuracy of such information. Further, if you elect to become a registered user of the Services, you are responsible for maintaining the confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. It is therefore critical that you do not share your User Credentials with anyone.  You agree to immediately notify BIT of any unauthorized use of your User Credentials or User Account, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Credentials and User Account, (b) update, maintain and control access to your User Credentials and User Account, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any user of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. BIT shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 5.

 

6.         Personal Information. We respect your privacy and the use and protection of your personally identifiable information. In the course of your use of the Services, you may be asked to provide certain personalized information to us or we may obtain such information from certain third parties, including, without limitation, Third Party Platforms (e.g., Facebook, etc.) (such information referred to hereinafter as “Personal Information”). Our information collection and use policies with respect to the privacy of such Personal Information are set forth in the Privacy Policy. We encourage you to read the Privacy Policy, and to use it to help make informed decisions regarding the collection, use and disclosure of your personal information. You acknowledge and agree that you are solely responsible for the accuracy and content of Personal Information.

 

7.         Proprietary Rights

 

7.1       As between you and BIT, BIT owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available through the Services (“Content”), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term “Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.

 

7.2       Except as expressly set forth herein, the Services are to be used solely for your non-exclusive, non-assignable, non-transferable, non-commercial and limited personal use and for no other purposes.  You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by BIT and set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of BIT or its owner if BIT is not the owner. Moreover, the framing or scraping of or in-line linking to the Services or any Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Content made available on or through the Services other than as expressly authorized by us is prohibited.  You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services.  Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Section 11 below.

 

8.         User Conduct.  You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is expressly prohibited. You agree that, while using the Services, you shall not:

 

(a)         engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;

(b)        submit, post, email, display, transmit or otherwise make available through the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

(c)         submit, post, email, display, transmit or otherwise make available through the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;

(d)        engage in or encourage conduct that affects adversely or reflect negatively on BIT, its affiliates, or parent company, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising or becoming a supplier to us in connection with the Services;

(e)        submit, post, email, display, transmit or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(f)          except as expressly permitted herein, use the Services for commercial or business purposes, including, without limitation, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking with another website, platform or service;

(g)        modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;

(h)        impersonate any person or entity or falsely state or otherwise represent your affiliation with any person or entity;

(i)          forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services;

(j)          solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information, including transmitting or facilitating in the transmission of junk email, chain letters, duplicative or unsolicited messages;

(k)           modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so; or

(l)            submit, post, email, display, transmit or otherwise make available through the Services any information, materials or content (and/or engage in or encourage conduct or other activities) that are, or could be perceived as, false, incorrect, misleading or deceptive.

 

BIT assumes no responsibility for monitoring the Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct.  If at any time BIT chooses in its sole discretion to monitor the Services, BIT nonetheless assumes no responsibility for User Postings (as defined herein), assumes no obligation to modify or remove any User Postings, and no responsibility for the conduct of any user. BIT reserves the right to investigate and take appropriate legal action against anyone who, in BIT’s sole discretion, violates, or is suspected of violating, this Section 8, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that BIT may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of BIT, users or any third parties.

 

9.         User Postings

 

9.1       The Services may provide you and other users with an opportunity to participate in message, comment, communication and other social networking features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages and other content and information via the Services (each, a “User Posting”, and collectively, “User Postings”). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User Credentials, information about the User Posting, your location, activity, preferences, photographs, media and/or similar information. You acknowledge and agree that all User Postings made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Posting and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and BIT by reason of your transmitting a User Posting to any area of or in connection with the Services. Further, you understand that by using the Services, you may be exposed to other people’s User Postings (e.g., from Artists, Fans, etc.) that could be offensive, incorrect, indecent or objectionable and, as such, BIT does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall BIT be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available. 

 

9.2       We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that BIT shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating this Agreement, including, without limitation, Section 8 herein, or is deemed to be unacceptable to BIT, as determined in BIT’s sole discretion.

 

9.3       In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to BIT the unrestricted, worldwide, non-exclusive, irrevocable, perpetual, fully paid-up  and royalty-free right and license, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to BIT, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to BIT shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered user or not.

 

9.4       BIT does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.

10.       Marketing and Social Networking Activities.

10.1     The Services may also provide you and other users with the opportunity to use certain messaging, marketing and social networking features and functionality that allow you to send messages, content and communications to other users of the Services, as well as fans, friends, family members and/or other contacts and social networks outside of the Services, which messages (whether sent via email, instant message, SMS text or other means) may promote or market your band, music, profile(s), content, products, information and other materials (whether created and provided by you or by third parties). In addition, you may receive such messages from us and other users of the Services as well. Certain wireless carrier and data access provider charges may apply to SMS messages and other messages sent to certain wireless Devices received by you or received by the individual to whom you sent such messages.

10.2     In connection with your use of the messaging, communication, marketing and social networking features and functionality made available in connection with the Services, you may not engage in any means of promotional marketing or communication that could in any way violate any applicable law, rule or regulation governing commercial and promotional communications (e.g., the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (Pub. L. No. 108-187, codified at 15 U.S.C. 7701 et seq) and the regulations promulgated thereunder (collectively, the “CAN SPAM Act,” which is the federal law governing commercial e-mail), and the Telephone Consumer Protection Act, codified at 47 U.S.C. 227, et. seq. (the “TCPA”), which the federal law governing, among other things, commercial SMS messages). Also, with respect to any marketing, promotional or advertising activities in which you may be permitted to engage in connection with your use of the Services or membership or participation in a Third Party Service, you may not conduct such activities in any manner that is, or could be perceived as, false, inaccurate, misleading or deceptive.

11.       Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, your may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):

 

·         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 copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;

 

·         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 us to locate the material;

 

·         Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-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 copyright owner, its agent 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.

 

Written notification of claimed infringement must be submitted to the following Designated Agent:

 

Name and Address of Designated Agent:

 

Lisa Weissberg
Legal & Business Affairs

Bandsintown, Inc.
c/o Cellfish Media LLC
215 Lexington Avenue, 18th Floor

New York, NY 10016
Tel: 866-235-7909
Email: copyrightagent@bandsintown.com

 

For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to BIT customer service by sending an email to support@bandsintown.com. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 11, your DMCA notice may not be valid.

 

12.       Fee-Based Services

 

12.1     We may make available certain fee-based content and other e-commerce services, including the ability to purchase goods and services, on and/or in connection with the Services (“Fee-Based Services”). For example, you may be able to order certain music-related products and/or licenses through the Services, including, without limitation, additional Service features and functionality. Additional Terms may apply to your use of, access to and purchase of Fee-Based Services and such Additional Terms are incorporated herein by reference.

 

12.2     You may only use the Fee-Based Services if, and you hereby represent, warrant and agree that, (a) you are 18 years of age or older and (b) you shall pay in full the prices and fees (including, without limitation, all applicable taxes) for any purchases you, or anyone using the User Account registered to you, make via PayPal, credit, debit or charge card or other payment means then acceptable to BIT concurrent with your order. Certain payment means acceptable to BIT may be subject to certain additional restrictions and conditions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card or other payment service issues, please ensure all data is correct and resubmit. If the transaction is not accepted, you will be unable to use that card or payment method for your transaction and should use another card or payment method acceptable to BIT. Credit Card information entered within the BIT App is encrypted and stored within the BIT App on your phone. You will be able to delete or change the information entered in your settings or by deleting the BIT App.

 

12.3     BIT may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, BIT does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services on or in connection with the Fee-Based Services do not imply our or any of our affiliates' endorsement of such products or services. Moreover, BIT and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Further, if BIT terminates your use of or registration to the Services because you have breached this Agreement, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.

 

12.4     If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify BIT customer service of such complaint or dispute by sending a detailed email to support@bandsintown.com.

 

13.       Third Party Platforms, Services and Content. The appearance, availability, or your use of (a) URLs or hyperlinks referenced or included anywhere in connection with the Services or any other form of link or re-direction of your connection to, with or through the Services, or (b) any third party websites, content, data, information, applications, platforms, goods, services or materials, including Third Party Platforms (collectively, “Third Party Services”) does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of BIT, its affiliates, or parent company, or any of their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, suppliers, partners or service providers. We do not verify, endorse, or have any responsibility for Third Party Services and any third party business practices (including, without limitation, their privacy policies), whether the Services', BIT’s or its affiliates’ logos, marks, names and/or sponsorship or other identification is on the Third Party Services. If any Third Party Services you interact with obtains or collects personal information from you, in no event shall we assume or have any responsibility or liability in connection for any use, collection or disclosure by or in connection with such Third Party Services. Accordingly, we encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each Third Party Service you use.

 

14.       Data and Wireless Access Charges. Certain BIT Apps and other Services require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for your Device may charge you data access fees in connection with your use of such BIT Apps and other Services, including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges. Under no circumstances will BIT be responsible for any such data access fees and charges in connection with your use of any BIT Apps or other Services, including wireless internet, email, text messaging or other charges or fees incurred by you (or any person that has access to your Device, telephone number, email address, User Account or other similar information). Further, the use or availability of certain BIT Apps and other Services may be prohibited or restricted by your wireless carrier and/or data access provider, and not all BIT Apps and other Services may work with all wireless carriers, networks, platforms, services or Devices.

 

15.       Advertisements. From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website, service or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).

 

16.       Promotions, Contests, and Sweepstakes. From time to time, BIT, or the Services’ operational service providers, suppliers, partners, and Advertisers may conduct promotions and other activities on, through or in connection with the Services, including, without limitation, contests and sweepstakes (collectively, “Promotions”). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you in connection therewith.

 

17.       Assignment. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by BIT without restriction, notice or other obligation to you.

 

18.       Indemnity. You agree to indemnify, defend and hold BIT, its affiliates, and parent company, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your breach or violation this Agreement or (c) your User Postings. BIT reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.

19.       DISCLAIMER AND LIMITATIONS OF LIABILITY. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED.  WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, USER POSTINGS AND CONTENT ASSOCIATED WITH YOUR USE OF THE SERVICES. FURTHER, WITHOUT LIMITING THE FOREGOING, BIT, ITS AFFILIATES, PARENT COMPANY, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, PARTNERS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS MAKE NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SERVICES, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, MADE IN CONNECTION WITH PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU IN CONNECTION WITH THE SERVICES, INCLUDING CORRESPONDENCE WITH COMPANY OR ITS AGENTS OR OTHERWISE.

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BIT, ITS AFFILIATES, PARENT COMPANY, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, PARTNERS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.

YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES, CONTENT AND TRANSMISSIONS, INCLUDING, WITHOUT LIMITATION, USER POSTINGS, MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT COMPANY ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS OR USER POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY USER POSTINGS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS OR USER POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.

20.       Customer Support. For assistance with technical issues or customer support inquiries, please send an email to support@bandsintown.com.


21.       Governing Law; Miscellaneous.

 

21.1     This Agreement contains the entire understanding and agreement between you and BIT concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of BIT to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. 


21.2     This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the state's conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise.

 

21.3     IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.

 

21.4     TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND BIT WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

 

21.5     The Services are controlled by BIT from its offices in the U.S. BIT makes no representation or warranty that the Services or Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.

 

This Agreement was last modified on the date indicated above and is effective immediately.

 

COPYRIGHT NOTICE

 

Copyright © 2011 Bandsintown, Inc.

 

TRADEMARK NOTICE

 

The trademarks, logos, service marks and trade names (collectively, the “Trademarks”) displayed on or in connection with the Services are registered and unregistered Trademarks of BIT, its affiliates and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. All Trademarks not owned by BIT or its affiliates that appear on or in connection with the Services, if any, are the property of their respective owners. Nothing contained on or in connection with the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on or in connection with the Services without the written permission of BIT or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on or in connection with the Services is strictly prohibited. BIT will aggressively enforce its Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.