Terms of Use
Ownership of Site; Agreement to Terms of Use
These Terms and Conditions of Use (the “Terms of Use”) apply to the Unheard Artist Inc web site located at
www.picktunes.com, and all associated sites linked to www.picktunes.com by Unheard Artist Inc, its subsidiaries and affiliates, including Unheard Artist Inc sites around the world (collectively, the “Site”). The Site is the property of Unheard Artist, Inc. (“Unheard Artist”) and its licensors.
BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE.
Unheard Artist Inc reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, Unheard Artist grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.
All media (downloaded or samples), software, text, images, graphics, user interfaces, music, videos, photographs, trademarks, logos, artwork and other content on the Site (collectively, "Content"), including but not limited to the design, selection, arrangement, and coordination of such Content on the Site is owned or licensed by or to Unheard artist, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws. Except as expressly provided in this Terms of Use, no part of the Site and no Content may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without Unheard artist's prior express written consent. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets, trade dress, rights of publicity or trademarks with respect to any of the Content, and Unheard artist reserves all rights not expressly granted hereunder. Unheard artist expressly disclaims all responsibility and liability for uses by you of any Content obtained on or in connection with the Site.
Requirements (System, Hardware and Software)
Use of the service is affected by the performance of your system. The service requires a Windows platform (Windows 98, 2000, ME or XP), a 500 MHz Pentium processor or better, Internet connection (additional fees may apply), Internet Explorer 5.5 or higher, 256 MB RAM (recommended), an e-mail address, available disk space for downloads and may also require certain other software (additional fees may apply). High Speed Internet Access is highly recommended for optimal performance of the service. You agree and acknowledge that your computer meets the system requirements, that these requirements may change from time to time, and are your responsibility.
Refund Policy
Music downloads are non-returnable. Please be sure you are certain that you are purchasing the tracks you want. In some circumstances a credit may be granted.
Content
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Unheard Artist, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Unheard Artist’s express prior written consent.
You may use information on Unheard Artist or Pick Tunes products and services (such as data sheets, knowledge base articles, and similar materials) purposely made available by Unheard Artist or Pick tunes for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.
Your Use of the Site
You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Pick Tunes reserves the right to bar any such activity.
You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Unheard Artist server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Pick Tunes, including any Unheard Artist account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Unheard Artist Inc's systems or networks, or any systems or networks connected to the Site or to Unheard Artist.
You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Unheard Artist on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
You may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Unheard Artist or others.
All downloaded music, images, video, artwork, text, software and other copyrightable materials ("Digital Downloads") are sublicensed to Consumers and not sold, notwithstanding use of the terms "sell," "purchase," "order," or "buy" on the Site or this Terms of Use. Your Digital Download sublicense is non-exclusive, non-transferable, non-sublicensable, limited and for use only within the United States.
"Standard Usage Rules", and together with any more restrictive usage rules that may be imposed by certain labels and licensors, the "Usage Rules". These additional usage rules are available per item by clicking the usage rules button for the Album or track(s) in question.
Different Licensors May Require More Restricted Usage Rules. Unfortunately, certain labels and licensors of digital downloads may require stricter usage rules than the Standard Usage Rules. When applicable, we will identify these more restrictive usage rules prior to your purchase of a Digital Download that is subject to any such restrictive usage rule.
You may only download, transfer, copy and use the Digital Downloads as stated in the particular Usage Rules for that Digital Download, which Usage Rules are hereby incorporated by reference. No other downloads, transfers, copies or uses of Digital Downloads are permitted. All other rights are reserved. As a condition of purchasing each Digital Download, you represent to Unheard artist that you understand and agree to the limited uses associated with a particular Digital Downloads Usage Rules.
Standard Usage Rules. You may download music to a single registered personal computer ("Primary Computer"). You may then transfer music files and backup license files to no more than 5 additional personal computers ("Secondary Computers") (but without rights to further transfer or copy from that Secondary Computer). You may play music an unlimited number of times on your Primary Computer and your Secondary Computer. You shall be entitled to (A) burn (only from your Primary Computer) Digital Downloads solely for personal, non-commercial use unlimited number of times, and (B) export Digital Downloads (solely from the Primary Computer) an unlimited number of times to a Portable Device (as defined below). The foregoing are collectively referred to as the "Standard Usage Rules", and together with any more restrictive usage rules that may be imposed by certain labels and licensors, the "Usage Rules". These additional usage rules are available per item by clicking the usage rules button for the Album or track(s) in question.
Different Licensors May Require More Restricted Usage Rules. Unfortunately, certain labels and licensors of digital downloads may require stricter usage rules than the Standard Usage Rules. When applicable, we will identify these more restrictive usage rules prior to your purchase of a Digital Download that is subject to any such restrictive usage rule.
You may only download, transfer, copy and use the Digital Downloads as stated in the particular Usage Rules for that Digital Download, which Usage Rules are hereby incorporated by reference. No other downloads, transfers, copies or uses of Digital Downloads are permitted. All other rights are reserved. As a condition of purchasing each Digital Download, you represent to Unheard Artist that you understand and agree to the limited uses associated with a particular Digital Downloads Usage Rules
Approved Electronic Devices For Digital Downloads. The Digital Music Downloads are sublicensed for play only upon approved electronic devices. "Approved Electronic Devices" are subject to the Usage Rules above and include the following: (i) the Primary Computer and Secondary Computer registered with this Site, and (ii) lightweight devices that receive and store digital music files, and play them back in analog form, but which are incapable of further transferring Digital Downloads ("Portable Devices"). Portable Devices must support the Windows Media Audio ("WMA") format and meet "Class 1000" standards. WMAs are not compatible with any Macintosh Operating Systems. WITHOUT LIMITING ANY PROVISION HEREIN, UNHEARD ARTIST MAKES NO WARRANTY THAT ANY PARTICULAR COMPACT DISC BURNER WILL BE COMPATIBLE WITH ANY DIGITAL DOWNLOAD OR THAT ANY COMPACT DISC BURNED WILL FUNCTION IN ALL COMPACT DISC PLAYERS.
Prohibited Uses of Digital Downloads. You may not reverse engineer, decompile, disassemble, modify or disable any copy protection or use limitation systems associated with any of the Digital Downloads. You may not play and then re-digitize any of the Digital Downloads, or upload those Digital Downloads to the Internet. You may not create any "derivative works" by altering any of the Digital Downloads. You may not use the Digital Downloads in conjunction with any other third-party content (e.g. to provide sound for a film). You may not exploit any Digital Download for any commercial purposes (including the sale of bundled Digital Downloads transferred onto Approved Electronic Devices). You further agree to indemnify and hold harmless Unheard artist for your failure to comply with this section.
Conditions to Sublicensing of Digital Downloads to You. Digital Rights Management ("DRM") software will be downloaded onto your Approved Electronic Devices along with your Digital Download music files, and will limit your uses as specified in the Usage Rules. You must first install, and limit any approved uses of the Digital Music Download, using only Microsoft Corporation's Windows Media Player 9 Series, or a later higher version. You must also first install a software program that is used to compress and decompress ("codec") music files. At present, the only approved codec is Microsoft Corporation's Windows Media Audio version 9 or higher. Unheard artist reserves the right to change at any time, without prior notice to you, the software required to download, transfer, copy and use or limit use of any of the Digital Downloads. The speed at which a Digital Download can be transferred to your registered personal computer depends in large part upon the bandwidth of the connection provided to you by your Internet Service Provider. You are responsible for all charges associated with use of your Internet Service.
Unheard artist is using the Microsoft digital rights management technology for Windows Media distributed with the download manager software ("WM-DRM") to protect the integrity of their content ("Secure Content") so that their intellectual property, including copyright, in such content is not misappropriated. Portions of this software and other 3rd party applications use WM-DRM to play Secure Content ("WM-DRM Software"). If the WM-DRM Software's security has been compromised, owners of Secure Content ("Secure Content Owners") may request that Microsoft revoke the WM-DRM Software's right to copy, display and/or play Secure Content. Revocation does not alter the WM-DRM Software's ability to play unprotected content. A list of revoked WM-DRM Software is sent to your computer whenever you download a license for Secure Content from the Internet. Microsoft may, in conjunction with such license, also download revocation lists onto your computer on behalf of Secure Content Owners. Secure Content Owners may also require you to upgrade some of the WM-DRM components distributed with this software ("WM-DRM Upgrades") before accessing their content.
When you attempt to play such content, WM-DRM Software built by Microsoft will notify you that a WM-DRM Upgrade is required and then ask for your consent before the WMDRM Upgrade is downloaded. Non-Microsoft WM-DRM Software may do the same. If you decline the upgrade, you will not be able to access content that requires the WM-DRM Upgrade; however, you will still be able to access unprotected content and Secure Content that does not require the upgrade. WM-DRM features that access the Internet, such as acquiring new licenses and/or performing a required WM-DRM Upgrade, can be switched DRM Addendum to the EULA for Microsoft Page 4 9-11-2003a Windows Media Format SDK 9 Series off. When these features are switched off, you will still be able to play Secure Content if you have a valid license for such content already stored on your computer.
Purchases; Other Terms and Conditions
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Site, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service.
Unheard Artist’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements.
Unheard Artist may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Unheard Artist makes no commitment to update the materials on the Site with respect to such products and services.
The following terms also govern and apply to your use of the Site, and they are incorporated herein by this reference:
Modifications to Prices or Billing Terms. UNHEARD ARTIST RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.
Each of these policies may be changed from time to time and are effective immediately upon posting such changes on the Site.
Accounts, Passwords and Security
Certain features or services offered on or through the Site may require you to open an account (including setting up an Unheard Artist ID and password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Unheard Artist immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by Unheard Artist or any other user of or visitor to the Site due to someone else using your Unheard Artist ID, password or account.
You may not use anyone else’s Unheard Artist ID, password or account at any time without the express permission and consent of the holder of that Unheard Artist ID, password or account. Unheard Artist cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
Privacy
Unheard Artist’s Privacy Policy applies to use of this Site, and its terms are made a part of these Terms of Use by this reference. To view Unheard Artist’s Privacy Policy,
click here. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.
Links to Other Sites and to the Unheard Artist Site
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Unheard Artist’s control, and Unheard Artist is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
Disclaimers
UNHEARD ARTIST DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. UNHEARD ARTIST CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. UNHEARD ARTIST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNHEARD ARTIST DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY UNHEARD ARTIST SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST UNHEARD ARTIST FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Unheard Artist reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Limitation of Liability
Except where prohibited by law, in no event will Unheard Artist be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Unheard Artist has been advised of the possibility of such damages.
If, notwithstanding the other provisions of these Terms of Use, Unheard Artist is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, Unheard Artist’s liability shall in no event exceed the greater of (1) the total of any subscription or similar fees with respect to any service or feature of or on the Site paid in the six months prior to the date of the initial claim made against Unheard Artist (but not including the purchase price for any Unheard Artist hardware or software products or any Unheard Artist Care or similar support program), or (2) US0.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
Indemnity
You agree to indemnify and hold Unheard Artist, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Unheard Artist by any third party due to or arising out of or in connection with your use of the Site.
Violation of These Terms of Use
Unheard Artist may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Unheard Artist’s rights or property, or the rights or property of visitors to or users of the Site, including Unheard Artist’s customers. Unheard Artist reserves the right at all times to disclose any information that Unheard Artist deems necessary to comply with any applicable law, regulation, legal process or governmental request. Unheard Artist also may disclose your information when Unheard Artist determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You acknowledge and agree that Unheard Artist may preserve any transmittal or communication by you with Unheard Artist through the Site or any service offered on or through the Site, and may also disclose such data if required to do so by law or Unheard Artist determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Unheard Artist, its employees, users of or visitors to the Site, and the public.
You agree that Unheard Artist may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to Unheard Artist, for which monetary damages would be inadequate, and you consent to Unheard Artist obtaining any injunctive or equitable relief that Unheard Artist deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Unheard Artist may have at law or in equity.
You agree that Unheard Artist may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
If Unheard Artist does take any legal action against you as a result of your violation of these Terms of Use, Unheard Artist will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Unheard Artist. You agree that Unheard Artist will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Use.
Governing Law; Dispute Resolution
You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Santa Clara County, California, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Unheard Artist and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Void Where Prohibited
fPick Tunes administers and operates the www.picktunes.com Site from its location in Cupertino, California USA; other Pick Tunes sites may be administered and operated from various locations outside the United States. Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Pick Tunes reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
Miscellaneous
You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and Pick Tunes with regard to your use of the Site, and any and all other written or oral agreements or understandings previously existing between you and Pick Tunes with respect to such use are hereby superseded and cancelled. Pick Tunes will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. Pick Tunes’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Pick Tunes of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Pick Tunes and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
Pick Tunes provides access to Pick Tunes international data and, therefore, may contain references or cross references to Pick Tunes products, programs and services that are not announced in your country. Such reference does not imply that Pick Tunes in your country intends to announce such products, programs or services.
Feedback and Information
Any feedback you provide at this site shall be deemed to be non-confidential. Pick Tunes shall be free to use such information on an unrestricted basis.
The information contained in this web site is subject to change without notice.
All rights reserved. Unheard Artist Inc
