Spinitron Webcast Archive Terms of Service
BY USING SPINITRON WEBCAST ARCHIVE SERVICE, YOU ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, DO NOT USE THE SPINITRON WEBCAST ARCHIVE SERVICE. THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE THAT ALTERS YOUR RIGHTS AND HOW DISPUTES WILL BE RESOLVED. PLEASE READ THESE TERMS CAREFULLY.
These Terms of Service, last updated November 18, 2020, may be amended and modified by Spinitron at its sole discretion at any time by posting changes to the Spinitron web site and/or user forum. Your use of the webcast archive service after such posting shall constitute your acceptance of any such amendments or modifications.
Preamble and Background
These Terms of Service are a legal agreement between Spinitron LLC, a Massachusetts limited liability company with a primary location of 199 W Newton St, Boston, MA 02116 (“Spinitron”), as provider of the Spinitron Webcast Archive Service and either a) a producer of a webcast to be archived by the archive service (“Webcaster”), or b) a consumer of a webcast archived by the service (“Listener”). The term “User” refers to a Webcaster or a Listener.
Spinitron shall provide the Spinitron Webcast Archive Service (“Archive Service”) to Webcasters in exchange for a subscription fee. The Archive Service shall include webcast archiving tools and services to Webcasters. The service provides a time-limited archive of Webcasters’ live Internet media streams (“Webcasts”). The Archive Service includes, but is not limited to, the following: digital audio recording of Webcasts, storage of the recordings, on-demand playback of the recordings to Listeners via Internet, monitoring of recording and storage processes, logging of Listeners’ use, and aggregated Listener usage statistics. The Archive Service additionally allows Listeners to receive selected streams of prior recordings of Webcasters’ recorded media streams. Spinitron reserves the right to modify the Archive Service at any time and these Terms of Service apply to any so modified service.
Spinitron additionally provides web pages that include archive players that Webcaster or 3rd party websites may link to and widgets and other tools and technologies for integrating or sharing archive players in Webcaster’s or 3rd party’s websites.
Webcaster shall prepare and transmit its Webcast and provide access to it through transmissions via the Internet and/or via mobile/wireless technologies, and use the Archive Service and Spinitron’s technology and infrastructure in accordance with the terms and conditions set forth herein.
Webcaster has obtained any and all required third-party rights and licenses authorizing the transmission, use or other exploitation of sound recordings (and has made any and all required payments associated with obtaining those rights and licenses), in connection with the Archive Service.
Listener desires to access transmissions of archived Webcasts through transmissions via the Internet and/or via mobile/wireless technologies.
Trademark License
Spinitron grants Webcaster a non-exclusive, non-sublicensable, non-transferable, royalty-free, worldwide license to use and display Spinitron Marks for the purpose of advertising and promoting the Archive Service to the public. Webcaster grants Spinitron reciprocal license for the same limited purpose.
Technology License
Spinitron grants Webcaster a non-exclusive, non-sublicensable, and non-transferable license to use the Spinitron Technology for the sole purpose of enabling Users to use the Archive Service as regulated by these Terms of Service. Spinitron reserves the right to license its technology and intellectual property independently of these Terms of Service.
Intellectual Property Ownership and License
Unless expressly granted in writing by Spinitron, all rights in or to the Webcast Archive or its media streams or any intellectual property used in its media streams (collectively “Archive Content”) are reserved to Spinitron except those expressly granted in these Terms of Service.
The copying, reproduction, re-arrangement, sale, leasing, renting, lending, distribution, redistribution, modification or adaptation, downloading, side-loading, exchanging, creating of derivative works, uploading, posting, transmitting, communication to the public or publication, directly or indirectly, of the Archive Content, except pursuant to the grant of rights in these Terms of Service, is prohibited. User agrees to abide by any and all additional notices, information or restrictions in respect of the Archive Services. Exploiting any part of the Archive Services for a purpose that is not permitted by these Terms of Service is prohibited without prior written permission from Spinitron or the applicable intellectual property rights holder.
Subject to compliance with these Terms of Service, Spinitron grants Listener a limited, non-exclusive, non-commercial, and revocable license to listen to Archive Content streamed from the Archive Service and to embed Spinitron widgets on websites, blogs or social media for non-commercial use.
Linking and Widget Policy
User may include links to Spinitron or to Archive Service resources or include widgets in any website or other Internet medium (collectively “Linking Context”) under the following criteria:
- User may link to, but not replicate, the Archive Content;
- User must not imply that Spinitron is endorsing or sponsoring anything related to the Linking Context;
- User must not present false information about Spinitron or its products or services;
- Linking Context must not contain content that is illegal or obscene and must not support, endorse or encourage piracy or the unauthorized exploitation of intellectual property rights.
- Linking Context must not be part of a commercial service.
- Spinitron reserves the right to deny permission to include links to Spinitron or to Archive Service resources or include widgets in a website at its own discretion.
Prohibited Uses
User agrees to abstain from any of the following prohibited uses:
- access the Archive Service from territories where their access or use thereof is illegal;
- defame, harass, abuse, threaten, stalk or defraud users of the Archive Service, or collect, or attempt to collect, personal information about users or third parties without their consent;
- intentionally interfere with or damage, impair or disable the operation of the Archive Service or any user’s enjoyment of it, by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code;
- attempt to gain unauthorized access to the Archive Service, or any part of it, other accounts, computer systems or networks connected to the Archive Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Archive Service or any activities conducted on the Archive Service;
- obtain or attempt to obtain any materials or information through any means not intentionally made available through the Archive Service;
- use any robot, spider, scraper, or other automated means to access the Archive Service for any purpose without written permission or bypass robot exclusion headers or other measures intended to restrict access to the Archive Service;
- reverse engineer, decompile, disassemble otherwise attempt to discover the source code of the Archive Service or any part thereof;
- modify, adapt, translate or create derivative works based upon the Archive Service or any part thereof;
- remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Archive Service, features that prevent or restrict the use or copying of any content accessible through the Archive Service, or features that enforce limitations on the use of the Archive Service.
Content Disclaimer
User understands that use of the Archive Service exposes Listeners to Archive Content that is produced by the Webcaster, and that Spinitron is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Archive Content. User further understands and acknowledges that Listeners may be exposed to Archive Content that is inaccurate, offensive, indecent, or objectionable, and agrees to waive, and hereby does waive, any legal or equitable rights or remedies User has or may have against Spinitron with respect thereto. Spinitron does not endorse any Archive Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Spinitron be liable in any way for or in connection with any Archive Content, including, but not limited to, for any inaccuracies, errors or omissions, any intellectual property infringement, or for any loss or damage of any kind incurred as a result of the use of any Archive Content.
Webcaster’s Obligations
Webcaster shall at all times: (a) comply with all applicable laws, rules and regulations and Spinitron’s policies (as amended from time to time), including: (i) license restrictions; (ii) Spinitron’s Terms of Service; (iii) applicable data protection laws; and (iv) the Digital Millennium Copyright Act (“DMCA”) including compliance with the Performance Complement; (b) comply with the technical and other requirements made by Spinitron for the performance of the Archive Service, including to transmit its Webcast to Spinitron at a speed designated by Spinitron; and © inform Spinitron in writing immediately upon receipt of notice from any third party alleging that Webcast Archive or any part of it: (i) infringes any third party copyright, trademark, trade secret or any publicity, privacy or patent right or other similar personal or proprietary rights; or (ii) is in breach of Spinitron’s Terms of Service or Privacy Policy.
Information on licensing and the Performance Complement are available at https://www.soundexchange.com/service-provider/licensing-101/
Term and Termination
These Terms of Service will continue to apply to User until terminated by either User or Spinitron. Spinitron may terminate these Terms of Service or suspend User’s access to the Archive Service at any time, including but not limited to in the event of User’s actual or suspected unauthorized use of the Archive Service or Content, nonpayment of Webcaster’s subscription fee, or non-compliance with these Terms of Service. If User or Spinitron terminates these Terms of Service, or if Spinitron suspends User’s access to the Archive service, User agrees that Spinitron shall have no liability or responsibility to User, and Spinitron will not refund any amounts that Webcaster has already paid, to the fullest extent permitted under applicable law. Spinitron reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Archive Service with or without notice. Except as otherwise stated in these Terms of Service, User agrees that Spinitron shall not be liable to User or to any third party for any modification, suspension, or discontinuation of the Archive Service. This section will be enforced to the extent permissible by applicable law. Webcaster may terminate these Terms of Service by stating their intent in writing to Spinitron.
Fees and Payment
Spinitron offers various plans (“Subscriptions”) to Webcasters, each of which offers a different level of usage to Archive Service. Descriptions of the Subscriptions may be found at spinitron.com. Webcaster may use the Archive service only in accordance with the specific Subscription Webcaster has subscribed to. Fees and prices appearing at spinitron.com are based on the currency of the United States. Webcaster may cancel its Subscription by contacting Spinitron.
Spinitron may change the price for the Subscriptions, and will communicate any price changes to Webcaster in advance. Price changes for Subscriptions will take effect at the start of the next subscription period following the date of the price change. Webcaster accepts the new price by continuing to use the Archive Service after the price change takes effect. If Webcaster does not agree with the price changes, Webcaster has the right to reject the change by unsubscribing from the Archive Service prior to the price change going into effect.
Webcaster’s Warranties
Webcaster represents and warrants that:
- Spinitron’s receipt, storage, use, reproduction, transmission or retransmission (“Handling”) of Webcast Archive or any part of it shall not violate or infringe any third-party intellectual property rights or any publicity or privacy right;
- Spinitron’s use of the Webcaster Marks, and any updates and modifications of them, shall not violate or infringe any intellectual property rights or any publicity or privacy right;
- Spinitron’s Handling of Webcast Archive or any part of it shall not breach any content standards requirements or codes promulgated by any relevant authority to which Webcaster and Spinitron may be subject;
- Webcast Archive will not contain or disclose processes or instructions which, if implemented, might cause damage or injury to any person or property;
- Webcast Archive (inclusive of both sound recordings and any underlying musical compositions or literary works) is either owned by and original to Webcaster or has been lawfully obtained and licensed from any and all applicable third parties;
- Webcaster has authority or has obtained any and all necessary approvals or licenses (compulsory or otherwise, and including, without limitation, all required licenses from any Performing Rights Organization), and has made or will make any associated required payments, for the storage, use, reproduction, distribution, exploitation, performance, transmission and retransmission of Webcast Archive or any part of it over the Internet and/or via wireless networks, and that such authority, approval or license, if any, is current and in full force and effect;
- Webcast Archive, or any part thereof, does not contain material that is defamatory, libelous, obscene or otherwise unlawful;
- no litigation is pending or threatened with respect to Webcast Archive or any part of it;
- all service or product claims made by Webcaster pursuant to or in connection with these Terms of Service shall be true and correct and fully substantiated in accordance with applicable government laws and regulations, and Webcaster shall not perform any act (or fail to perform any act) in violation of any government law, statute, or regulation; and
- Webcaster shall at all times comply with the provisions of applicable laws, rules and regulations and with Spinitron’s policies, including without limitation Spinitron’s Terms of Use and Privacy Policy.
For the avoidance of doubt, Spinitron has no responsibility for the content of Webcast Archive and no obligation to review, edit or monitor such content.
Assumption of Liability
All webcasting, transmission or other exploitation of any of Webcast Archive via the Archive Service is at Webcaster’s sole risk, and Webcaster assumes full responsibility (financial or otherwise) for any and all claims or suits that may be brought alleging any infringement of any third-party right (including, without limitation, any intellectual-property right) arising from such webcasting, transmission or other exploitation of Webcast Archive.
Limitation of Liability
IN NO EVENT SHALL SPINITRON BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SPINITRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SPINITRON’S LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THESE TERMS OF SERVICE EXCEED THE TOTAL AMOUNT RECEIVED BY SPINITRON FROM WEBCASTER DURING THE TERM OF THESE TERMS OF SERVICE.
Disclaimer
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPINITRON PROVIDES THE SPINITRON TECHNOLOGY AND ARCHIVE SERVICE “AS IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. SPINITRON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY SPINITRON. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DECLINED. SPINITRON DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER AS TO ANY SPINITRON TECHNOLOGY OR ARCHIVE SERVICE (INCLUDING ANY TOOLS) RENDERED BY SPINITRON AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. SPINITRON MAKES NO REPRESENTATION THAT THE OPERATION OR PROVISION OF THE ARCHIVE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND SPINITRON WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Indemnity
The User agrees to indemnify, defend, and hold harmless Spinitron, any of its parent, subsidiary, or affiliated companies, and Spinitron’s directors, officers, employees, agents, attorneys, assignees, or independent contractors from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (1) the User’s breach of the Terms of Service or any one of them; (2) any Archive Content posted or otherwise contributed; (3) any activity in which the User engages on or through the Archive Service; and (4) the User’s violation of any law or the rights of a third party.
Disputes
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE ARCHIVE SERVICE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS AGREEMENT.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS CONTAINED IN THESE TERMS OF SERVICE AS A COURT WOULD.
THE ARBITRATION WILL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) UNLESS THE PARTIES AGREE OTHERWISE. THE PARTIES CONSENT THAT THE PREVAILING PARTY SHALL BE ENTITLED TO ITS REASONABLE ATTORNEY FEES AND COSTS. WE ALSO BOTH AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Discontinuance
Spinitron reserves the right to cease, discontinue, suspend or delete any transmissions of Webcast Archive if, in Spinitron’s sole discretion and without notice or liability to Webcaster, User acted inconsistently with any provision of these Terms of Service or any applicable law, rule or regulation, or that User has engaged in conduct that Spinitron reasonably determines to be inappropriate or unacceptable. Spinitron may in its sole discretion, and at any time, discontinue providing Archive Service, or any part thereof, on notice to Webcaster or without notice to Listener.
Designated Agent
For Purposes Of Section 512 Of The Digital Millennium Copyright Act, Spinitron’s Designated Agent contact information is: Eva Papp eva@spinitron.com.
General
These Terms of Service constitute the entire agreement between the parties and supersedes all prior and contemporaneous communications. If a court of competent jurisdiction finds any provision of these Terms of Service to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to implement the intent of the parties, and the remainder of these Terms of Service shall continue in full force and effect. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The parties each agree to take all actions and execute all documents as may be necessary or desirable to carry out or implement and give full effect to the provisions and intent hereof.
These Terms of Service (and any non-contractual disputes/claims arising out of or in connection with these Terms of Service ) shall be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to choice or conflict of law principles.