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Terms & Conditions
THIS MP3TUNES TERMS OF USE AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU," "YOUR" OR "YOURSELF"), AS THE END USER, AND MP3TUNES, INC, A DELAWARE CORPORATION ("OUR," "US," "WE" OR "MP3TUNES"), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED MUSIC SERVICE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES (COLLECTIVELY, THE "MATERIALS" MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, "THE SERVICE"). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACESSING THE SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE MP3TUNES SITE, THE SERVICE OR THE MATERIALS IN ANY MANNER.
When we refer to the "use" of the Service in this Agreement, we mean any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Service. This Agreement, together with any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement, including, without limitation our Privacy Policy, constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.
1. ENROLLMENT IN THE SERVICE
MP3tunes currently provides the Service for sampling and downloading music in the MP3 format. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to the music files. To begin the enrollment process, you must complete the Service registration process located on our web site at http://www.mp3tunes.com or any successor web site thereto ("MP3tunes Site") or such other registration process as we may provide from time to time.
2. MODIFICATION
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. Any changes we make will be effective immediately upon posting a revised version of this Agreement on the MP3tunes Site. Your continued use of the MP3tunes Site following such changes will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. If any change is unacceptable to you, you must stop using the MP3tunes Site, the Service and the Materials. If any new products or services become available, they will be considered a part of the Service and the Materials and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.
3. YOUR ACCOUNT
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being your "Account Information"). You further agree that, in providing such Account Information, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Account Information via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Account Information as required for your use of and access to the Service, as applicable. Once you register, you shall receive a unique username and password in connection with your account (collectively referred to herein as your "Username"). We may refuse to grant you a Username that is already taken, or that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You agree that you will not allow another person to use your Username to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your Username and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. MP3tunes is not liable for any harm caused by or related to the theft of your Username, your disclosure of your Username, or your authorization to allow another person to access and use the MP3tunes Site, the Service or the Materials using your Username. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account, including, but not limited to, any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
4. MP3TUNES PRIVACY POLICY
MP3tunes takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collection and use of your personally identifiable information in connection with your Username and your use of the Service. Our Privacy Policy is set forth at www.mp3tunes.com/privacypolicy.
5. LIMITATIONS ON USE OF THE SERVICE
5.1 MP3tunes will make reasonable efforts to keep the MP3tunes Site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of MP3tunes may, from time to time, result in temporary service interruptions. MP3tunes also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that MP3tunes shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.
5.3 You may not use or allow others to use, your Username and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or materials through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or materials in connection with your Username.
You also may not use, nor allow others to use, your Username, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the MP3tunes Site, the Service, the Materials or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; or (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party's prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
5.4 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
6. FEES AND PAYMENTS
6.1 All sales are final. If you wish to use the Service, you will be asked by MP3tunes to supply certain information applicable to your purchase, including, without limitation, credit card and other information. You understand that any such information will be treated by MP3tunes in the manner described in our Privacy Policy. You agree that all information that you provide to MP3tunes will be accurate, current and complete. By registering for the Service, you agree to pay all charges incurred by you or any users of your account and/or credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. The fees, charges and payments hereunder do not include and you are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
6.2 MP3TUNES RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT OR SERVICES PROVIDED BY MP3TUNES, EFFECTIVE IMMEDIATELY UPON POSTING NOTICE OF SUCH CHANGES ON THE MP3TUNES SITE. MP3TUNES MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. IF ANY SUCH CHANGE IS UNACCEPTABLE TO YOU, YOU MAY CANCEL YOUR USE OF THE SERVICE, AS PROVIDED IN SECTION 7 BELOW. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
7. TERMINATION
7.1 We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use the Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease.
7.2 Termination of this Agreement shall not relieve you of any obligations to pay charges accrued prior to such termination.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Only you may access the Service using your Username, unless otherwise agreed to in writing by MP3tunes. The content available through the Service is the property of MP3tunes or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of MP3tunes. You agree to indemnify and hold harmless MP3tunes for your failure to comply with this Section 8.1.
8.2 The trademarks, logos, and service marks displayed on the MP3tunes Site, including, but not limited to, MP3TUNES and MP3BEAMER (collectively the "Trademarks") are the registered and/or unregistered trademarks of MP3tunes, MP3tunes' licensors and suppliers, and others. The Trademarks may not be used in connection with any product or service that is not MP3tunes', in any manner that is likely to cause confusion with customers, or in any manner that disparages MP3tunes. Nothing contained on the MP3tunes Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of MP3tunes, MP3tunes' licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and MP3tunes will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
8.3 You acknowledge that MP3tunes retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or Trademarks with respect to the MP3tunes Site, the Service or the Materials, and MP3tunes reserves all rights not expressly granted hereunder. You shall promptly notify MP3tunes in writing upon your discovery of any unauthorized use or infringement of the MP3tunes Site, the Service or the Materials or MP3tunes' patents, copyrights, trade secrets, Trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
9. SUBMISSIONS AND POSTINGS
Please note that, because we and our designees host message boards and other forums found on the MP3tunes Site (collectively, the "Forums") and, therefore, redistribute materials you give to us, we require certain rights in those materials. Accordingly, by sending or transmitting to us creative suggestions, ideas, notes, concepts, information or other materials (collectively, "Submissions"), or by posting such Submissions to any area of the MP3tunes Site, you grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions.
10. FORUMS
Information on our Forums is provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with MP3tunes. You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive. We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the MP3tunes Site or Forums by third parties, whether such third parties are visitors to the MP3tunes Site, members of the MP3tunes community or others. The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of MP3tunes. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will we or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the MP3tunes Site. We have no obligation to monitor the MP3tunes Site or the Forums, or any Submissions or other materials that you or other third parties transmit or post on the MP3tunes Site or the Forums. You acknowledge and agree that we have the right (but not the obligation) to monitor the MP3tunes Site and the Forums and the materials you transmit or post; to alter or remove any such materials (including, without limitation, any posting to a Forum); to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the MP3tunes Site properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.
11. DISCLAIMER OF WARRANTIES
THE MP3TUNES SITE, THE SERVICE AND THE MATERIALS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MP3TUNES AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. MP3TUNES AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE MP3TUNES SITE, THE SERVICE OR THE MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MP3TUNES SITE, THE SERVER(S) ON WHICH THE MP3TUNES SITE IS HOSTED OR SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE MP3TUNES SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE MP3TUNES SITE, THE SERVICE AND THE MATERIALS AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF MP3TUNES OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE MP3TUNES SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE MP3TUNES SITE, THE SERVICE AND THE MATERIALS ARE ENTIRELY AT YOUR OWN RISK.
A possibility exists that the MP3tunes Site, Service, Materials or Forums could include inaccuracies or errors, or information or materials that violate this Agreement. Additionally, a possibility exists that unauthorized alterations could be made by third parties to the MP3tunes Site, Service, Materials or Forums. Although we attempt to ensure the integrity of the MP3tunes Site, we make no guarantees as to the MP3tunes Site's completeness or correctness. In the event that a situation arises in which the MP3tunes Site's completeness or correctness is in question, please contact us using our with, if possible, a description of the material to be checked and the location (URL) where such material can be found on the MP3tunes Site, as well as information sufficient to enable us to contact you. We will try to address your concerns as soon as reasonably practicable. For copyright infringement claims, see the section on "Claims of Copyright Infringement," below.
12. LIMITATION OF LIABILITY
NEITHER MP3TUNES NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE MP3TUNES SITE, THE SERVICE, THE MATERIALS, AND/OR ANY LINKED SITE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE MP3TUNES SITE, THE SERVICE, THE MATERIALS AND/OR ANY LINKED SITE IS TO STOP USING THE MP3TUNES SITE, SERVICE, MATERIALS AND/OR LINKED SITE, AS APPLICABLE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO MP3TUNES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE MP3TUNES SITE.
13. INDEMNITY
You agree to defend, indemnify and hold MP3tunes harmless against any losses, expenses, costs or damages (including any reasonable attorneys' fees and costs) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your Username. MP3tunes may participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval.
14. LINKS
The MP3tunes Site contains links to other Internet web sites, including affiliated web sites, which may or may not be owned or operated by MP3tunes. MP3tunes has not reviewed all of the web sites that are linked to the MP3tunes Site, and MP3tunes has no control over such sites. Unless otherwise explicitly stated, MP3tunes is not responsible for the content of such web sites, any updates or changes to such sites, or the privacy or other practices of such sites, and the fact that MP3tunes offers such links does not indicate any approval or endorsement of any material contained on any linked site. MP3tunes is providing these links to you only as a convenience. Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the MP3tunes Site or other sites) is free of such items as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature.
15. CLAIMS OF COPYRIGHT INFRINGEMENT
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by MP3tunes infringe your copyright (for example, materials posted on the MP3tunes Site), you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a)�a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b)�identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the MP3tunes Site are covered by a single notification, a representative list of such works); (c)�identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow MP3tunes to locate the material on the Site; (d)�the name, address, telephone number and email address (if available) of the complaining party; (e)�a statement that the complaining party has 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 (f)�a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed by MP3tunes against you, the DMCA permits you to send MP3tunes a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Notices and counter-notices with respect to the Site should be sent to MP3tunes, Attn: Legal Department, 5960 Cornerstone Court, Suite 100, San Diego, CA 92121, Tel. (858) 587-6700, Fax. (858) 587-8095, or send email. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
6. JURISDICTIONAL ISSUES
We make no representation that products or services available on or through the MP3tunes Site are appropriate or available for use in other locations other than the United States. Those who choose to access the MP3tunes Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Products, including software, made available through the MP3tunes Site are further subject to United States export controls. No such products may be downloaded or otherwise exported or re-exported (a)�into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any Materials, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
We reserve the right to limit the availability of the MP3tunes Site and/or the provision of any service, program, film or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service, program, film or other product that we provide.
17. RULES FOR SWEEPSTAKES, CONTESTS AND GAMES
Any sweepstakes, contests or games that are accessible through the MP3tunes Site are governed by specific rules. By entering such sweepstakes or contests or participating in such games you will become subject to those rules. We urge you to read the applicable rules, which are linked from the particular activity, and to review our Privacy Policy which, in addition to this Agreement, governs any information you submit in connection with such sweepstakes, contests and games.
18. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California MP3tunes Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400�R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
19. ARBITRATION
Any dispute relating in any way to this Agreement or to your visit to the MP3tunes Site shall be submitted to confidential arbitration in San Diego County, California, U.S.A., except that, to the extent you have in any manner violated or threatened to violate MP3tunes' intellectual property rights or other proprietary rights or the licenses granted pursuant to this Agreement, MP3tunes may seek injunctive or other appropriate relief in any state or federal court, and you irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, to rule upon or grant any extension, renewal or continuance of this Agreement, or to award damages or other remedies expressly prohibited by this Agreement, including, without limitation, punitive or exemplary damages. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. If, as a matter of law, the foregoing arbitration provision is not enforceable as to a particular claim brought by one party against the other, then that claim shall be instituted solely in a court situated in San Diego County, California, U.S.A.; for this purpose, both you and MP3tunes irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.
20. ACCESS BY MINORS
Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the web sites of the Electronic Frontier Foundation (http://www.eff.org/pub/Censorship/Ratings_filters_labeling) and of America Links Up (http://www.netparents.org/parentstips/browsers.html). Also, please see http://www.linspire.com/surf_safe_info.
21. MISCELLANEOUS
This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between MP3tunes and you relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between MP3tunes and you with respect to such subject matter. This Agreement is not assignable, transferable or sublicenseable by you except with MP3tunes' prior written consent. 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. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
22. QUESTIONS
The MP3tunes Site is provided by MP3tunes. If you have any questions, comments or complaints regarding this Agreement, the MP3tunes Site or the Service, feel free to contact us at MP3tunes, 5960 Cornerstone Court West, Suite 100, San Diego, CA 92121, Tel. (858) 587-6700, Fax. (858) 587-8095, email support.
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