BEFORE USING OR SIGNING IN TO THE SPINITRON SEARCH SERVICE, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY USING OR SIGNING IN TO THE SPINITRON SEARCH SERVICE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OR SIGN IN TO THE SPINITRON SEARCH SERVICE.
TERMS OF SERVICE AGREEMENT
1. Definitions. This Terms of Service Agreement (the “Agreement”) is a legal agreement between you and Spinitron LLC (“Spinitron”). In this Agreement, the term “Spinitron Search Service” or the “Search Service” means those functions on the Spinitron websites, including the site located at spinitron.com, that are dedicated or related to the searching and reviewing of content associated with radio spins, as defined below. The content, material, and associated online or electronic documentation contained or available through the Spinitron Search Service are referred to as the “Content.” The Content includes Spinitron’s database of spins reported to Spinitron by subscribing radio stations. A “Spin” is the elementary data record in the Spinitron database representing a sound recording or performance that a radio station broadcasts or webcasts to its audience. The term “you” means the company, entity, or individual who is using the Search Service under this Agreement. The term “we” or “us” means Spinitron, except that terms such as “both of us” means both you and us. The term “use” means storing, loading, installing, executing, or displaying the Content through the Search Service.
2. Subscriptions. Spinitron offers various plans (the “Subscriptions”), each of which offers a different level of access to Content. Descriptions of the Subscriptions may be found at spinitron.com. You may use the Search Service and access the Content only in accordance with the specific Subscription you have subscribed to. Fees and prices appearing at spinitron.com are based on the currency of the United States. You agree to pay all charges incurred under your Subscription account. By submitting the payment form you agree that Spinitron is authorized to charge the credit card you provided in accordance with the billing option you selected. Subscriptions can be purchased, either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the Spinitron Search Service for a specific time period. Unless your Subscription has been pre-paid, your payment to Spinitron will automatically renew at the end of your respective subscription period. You may cancel your Subscription using the spinitron.com website before the end of any subscription period. The cancellation will take effect the day after the last day of the current Subscription period. However, if you cancel your payment or Subscription and/or terminate the Agreement before the end of the current Subscription period, we will not refund any Subscription fee already paid to us.
3. Payments and cancellations. Spinitron may change the price for the Subscriptions, and will communicate any price changes to you in advance. Price changes for Subscriptions will take effect at the start of the next subscription period following the date of the price change. You accept the new price by continuing to use the Spinitron Search Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Spinitron Search Service prior to the price change going into effect.
4. Limitation on users. In order to use the Search Service and access the Content, you need to have the power to enter a binding contract with us and not be barred from doing so under any applicable laws. You also promise that any registration information that you submit to Spinitron is true, accurate, and complete, and you agree to keep it that way at all times.
5. Rights we grant users of the Search Service. Except as otherwise specifically set forth in this Agreement, upon payment of the Subscription fee, we grant you, and you accept the limited, non-exclusive, non-transferable, revocable right to access the Search Service and a limited, non-exclusive, non-transferable, revocable right to access the Content. These rights shall remain in effect until and unless terminated by you or Spinitron.
6. Content. Subscribing radio stations provides the Content, including all pertinent information regarding Spins. Spinitron does not audit the data that the subscribing radio stations provide, or attempt to ensure its accuracy. As a result of data-entry errors, the Content may contain typographical errors and other inaccuracies. Spinitron takes no responsibility for any such typographical errors or other inaccuracies. To the extent that Spinitron enables you to access Content not supplied by us, you should be aware that such Content may be protected by applicable copyright law.
7. Retained Rights. The Spinitron Search Service and the Content are the property of Spinitron. You do not obtain any ownership interest in the Spinitron Search Service or Content through this Agreement or otherwise. All Spinitron trademarks, service marks, trade names, logos, domain names, and any other features of the Spinitron brand (the “Brand Features”) are the sole property of Spinitron. The Agreement does not grant you any right to use the Brand Features, whether for commercial or for non-commercial use.
8. Limitations on Use. You agree to use the Search Service and the Content only for lawful purposes. The Content is provided through the Search Service based on Spinitron’s programming code, not for the provision of the programming code, and the programming code is not being delivered or licensed hereunder. In order to facilitate the operation of the Spinitron Search Service, Spinitron may access the processor, bandwidth, and storage hardware on the device you use to access the Search Service, and may place cookies or other small pieces of data on any such device. You may use the Search Service solely to enable you to interactively search, browse, and otherwise study the Content. The Search Service may be accessed only by a human being using a web browser to interact with the Search Service. Except to the extent permitted elsewhere within the Agreement, you may not: (a) permit other individuals or entities to use the Search Service or access the Content; (b) provide your authentication, or means of accessing the Search Service to any other person or use any other person’s authentication, or means of accessing the Search Service; © permit concurrent use of the Search Service; (d) circumvent any technology used by Spinitron or any third party to protect the Content or the Search Service; (e) access the Search Service using custom software, automation, or scripting; (f) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Search Service; (g) copy or mirror the Search Service or the Content; (h) rent, lease, grant a security interest in, or otherwise transfer rights to the Search Service; (i) “crawl” the Spinitron Search Service or otherwise use any automated method (including bots, scrapers, and spiders) to collect information from Spinitron; (j) embed the Search Service, or parts thereof, into an unrelated website; or (k) display, publish, distribute, or otherwise circulate any Content to any third party, including, but not limited to, displaying the Content on a third-party website. You acknowledge and agree that breaching this Agreement may result in immediate termination or suspension of your Spinitron Subscription account.
9. Use Outside the United States. The Spinitron Search Service is subject to laws and regulations of the United States. We make no representations or warranties that the Search Service or the Content is appropriate for use in jurisdictions outside the United States, or that this Agreement complies with the laws of any other nation. You warrant that you are not barred from accessing the Search Service or the Content by the laws or regulations of the United States. If you are located outside the United States, you warrant that you are not barred from accessing the Search Service or the Content by the laws or regulations of whatever nation you are located in. Furthermore, you agree to comply with all applicable laws and regulations, including trade and economic sanctions maintained by the United States. This paragraph shall survive termination or cancellation of the Agreement.
10. Changes to the Agreement. Occasionally, we may, in our discretion, make changes to the Agreement. When we make material changes to the Agreement, we will provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Search Service or by sending you an email. The “Last Updated” date at the top of this Agreement will indicate when the latest modifications were made. Your continued use of the Search Service following the posting of changes or modifications will constitute your acceptance of the revised terms and conditions. If you do not wish to continue using the Search Service under the new version of the Agreement, you may terminate the Agreement at any time by contacting us.
11. Term and termination. The Agreement will continue to apply to you until terminated by either you or Spinitron. Spinitron may terminate the Agreement or suspend your access to the Spinitron Search Service at any time, including in the event of your actual or suspected unauthorized use of the Spinitron Search Service or Content, nonpayment of a Subscription fee, or non-compliance with the Agreement. If you or Spinitron terminate the Agreement, or if Spinitron suspends your access to the Search Service, you agree that Spinitron shall have no liability or responsibility to you, and Spinitron will not refund any amounts that you have 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 Search Service with or without notice. Except as otherwise stated in the Agreement, you agree that Spinitron shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Search Service. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreement at any time by contacting Spinitron.
12. Contact and Customer support. For customer support, you may contact Spinitron at any time by phone or email. Contact information may be found at the About section of spinitron.com. We will use reasonable efforts to respond to all inquiries within a reasonable time, but we make no guarantees or warranties of any kind that any inquiry will be responded to within any particular time frame or that we will be able to satisfactorily answer any such inquiries. If you have any questions concerning the Spinitron Search Service or the Agreement, please contact Spinitron.
13. LIMITED WARRANTY. WE TRY TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE SPINITRON SEARCH SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SPINITRON SEARCH SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPINITRON MAKES NO REPRESENTATIONS AND DISCLAIMS ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SPINITRON DOES NOT WARRANT THAT THE SEARCH SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, SPINITRON MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT PROVIDED BY A THIRD PARTY ON OR THROUGH THE SPINITRON SEARCH SERVICE. YOU UNDERSTAND AND AGREE THAT SPINITRON IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF THIRD-PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SPINITRON SEARCH SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM SPINITRON SHALL CREATE ANY WARRANTY ON BEHALF OF SPINITRON IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW. THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
14. LIMITATION AND TIME FOR FILING. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SPINITRON SEARCH SERVICE IS TO UNINSTALL ANY SPINITRON SOFTWARE AND TO STOP USING THE SPINITRON SEARCH SERVICE. WHILE SPINITRON ACCEPTS NO RESPONSIBILITY FOR CONTENT CONTAINED ON THE SPINITRON SEARCH SERVICE THAT IS PROVIDED BY THIRD-PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY SUCH CONTENT, FOR ANY PROBLEMS OR DISSATISFACTION WITH SUCH CONTENT IS TO UNINSTALL ANY SPINITRON SOFTWARE AND TO STOP USING THE SPINITRON SEARCH SERVICE.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPINITRON, ITS MEMBERS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE SPINITRON SEARCH SERVICE, THIRD PARTY APPLICATIONS, OR CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SPINITRON HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SPINITRON SEARCH SERVICE, THIRD PARTY APPLICATIONS, OR CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO SPINITRON DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreement removes or limits Spinitron’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST SPINITRON MUST BE COMMENCED BY FILING AN INDIVIDUAL ACTION WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
15. Indemnification. To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold Spinitron harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any activity in which you engage on or through the Spinitron Search Service; (3) Spinitron’s termination of this Agreement; and (4) your violation of any law or the rights of a third party.
16. Governing Law and Jurisdiction. This Agreement (and any non-contractual disputes/claims arising out of or in connection with the Agreement) will be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to choice or conflict of law principles. Additionally, you and Spinitron agree to the jurisdiction of the courts of the Commonwealth of Massachusetts to resolve any dispute, claim, or controversy that relates to or arises in connection with this Agreement (and any non-contractual disputes/claims arising out of or in connection with the Agreement). You agree that the prevailing party shall be entitled to its reasonable attorney fees and costs.
17. No Class Or Representative Proceedings: Class Action Waiver. YOU AND SPINITRON AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Spinitron agree, no judge may consolidate the claims of more than one person or entity, or otherwise preside over any form of a representative or class proceeding. The judge may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the suit and may be brought in court.
18. Assignment. Spinitron may assign the Agreement or any part of it, and Spinitron may delegate any of its obligations under the Agreement. You may not assign the Agreement or any part of it, nor transfer or sub-license your rights under the Agreement, to any third party.
19. Entire Agreement. Other than additional agreements specifically referenced in this Agreement, including the terms and pricing for various Subscription packages available at spinitron.com, this Agreement constitutes the entire agreement between us and supersedes any prior agreements in relation to the subject matter of the Agreement, whether written or oral.
20. Severability and waiver. Unless otherwise stated in the Agreement, if any provision of the Agreement is held invalid or unenforceable for any reason or to any extent, such invalidity or unenforceability shall not affect or render invalid or unenforceable the remaining provisions of the Agreement, and the application of that provision shall be enforced to the extent permitted by law. Any failure by Spinitron to enforce the Agreement or any provision thereof shall not waive Spinitron’s right to do so.