MEMBERS TERMS OF SERVICE
Welcome to the CD Baby Site, which is located at cdbaby.com and members.cdbaby.com (the "Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Site. Any use of artist services through CD Baby are governed by the CD Baby Artist Agreement and its relevant addendums, a digital copy is available here - https://members.cdbaby.com/artistagreement.aspx. Access and use of the Site constitutes your agreement to and acceptance of all the TOS.
CD Baby (a division of Audio & Video Labs, Inc., along with our licensees and assignees referred in this Agreement as “us” and “we” and “CD Baby”) reserves the right to revise this TOS in its sole discretion at any time and without prior notice to you other than by posting the revised TOS on the Site. Any revisions to the TOS are effective upon posting. The TOS will be identified as of the most recent date of revision. It is incumbent upon you to visit this page periodically to ensure your continued acceptance of this TOS. Your continued use of the Site after a revised version of this TOS has been posted by CD Baby to the Site constitutes your binding acceptance of such revision and the revised TOS. Notwithstanding the preceding sentences of this paragraph, no revisions to this TOS will apply to any dispute between you and CD Baby that arose prior to the date of such revision.
1. Use of the Site.
(a) Eligibility. CD Baby will only knowingly provide the CD Baby Site to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the CD Baby Site only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The CD Baby Site is not intended for children under the age of 13.
(b) International Users: The Site is hosted in the United States.
(1) If you are a customer or client accessing the Site from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, then please note that you are transferring your personal data to the United States which does not have the same data protection laws as the EU and other regions.
(2) European Union and European Economic Area: The CD Baby Site is not intended for children accessing the Site from the European Union or the European Economic Area by children under the age of 16.
(c) Compliance With TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the CD Baby Site.
(d) Your License to Use the Site.
(1) CD Baby and its licensors solely and exclusively own all intellectual property and other right, title and interest in and to the CD Baby Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise.
(2) CD Baby grants you a limited revocable license to access and use the Site for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Site for purposes prohibited by CD Baby; create derivative works based on the Products or any third-party content available via the Site; or download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breach this TOS, CD Baby may revoke the license granted to you.
(3) This Section 1(d) does not pertain to your intellectual property rights. Any rights relating to materials that you upload to the Site are covered by the CD Baby Member Agreement (https://members.cdbaby.com/artistagreement.aspx).
2. Rules For Use Of the Site.
(a) Prohibited Use. Except as may be expressly permitted by CD Baby, you may not:
(i) interfere with the CD Baby Site by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;
(ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the CD Baby Site;
(iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet "search engine", hit counters or similar technology;
(iv) collect electronic mail addresses or other information from third parties by using the CD Baby Site;
(v) impersonate another person or entity;
(vii) use any meta tags, search terms, key terms, or the like that contain CD Baby's name or trademarks;
(viii) engage in any activity that interferes with another user's ability to use or enjoy the CD Baby Site; or
(ix) assist or encourage any third party in engaging in any activity prohibited by these TOS.
(c) Monitoring. CD Baby reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Site. If CD Baby determines, in its sole and absolute discretion, that you or another CD Baby user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, CD Baby may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
(d) Modification of the Site. CD Baby may modify the CD Baby Site at any time with or without notice to you, and will incur no liability for doing so.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant CD Baby permission to use such submissions for marketing and other promotional purposes. You agree that CD Baby will have no obligation to keep any Submissions confidential and you will not bring a claim against CD Baby based on "moral rights" or the like arising from CD Baby's use of a Submission.
4. Representations and Warranties.
(a) Mutual Representations and Warranties. You represent and warrant to CD Baby and CD Baby represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
(b) By You. You represent and warrant to CD Baby that, in your use of the CD Baby Site, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to CD Baby that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) CD Baby will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that CD Baby incurs in providing the CD Baby Site; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
5. Disclaimers, Exclusions, and Limitations.
(a) DISCLAIMER OF WARRANTIES. CD BABY PROVIDES THE SITE AND ANY CD BABY SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. CD BABY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. CD BABY MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
(b) EXCLUSION OF DAMAGES. CD BABY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE CD BABY SITE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID OR PAYABLE BY CD BABY TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You will indemnify and hold CD Baby and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS. If you have to indemnify CD Baby under this Section, CD Baby will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without CD Baby's express written permission.
(a) Termination. CD Baby may suspend or terminate your use of the Site if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
(b) Survival. These TOS will survive indefinitely unless and until CD Baby chooses to terminate them.
(c) Effect of Termination. If you or CD Baby terminates your use of the Site or any CD Baby service, CD Baby may delete any Submissions or other materials relating to your use of the CD Baby Site on CD Baby's servers or otherwise in its possession and CD Baby will have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to CD Baby, you must use the following addresses: CD Baby, 9600 NE Cascades Parkway Suite 180, Portland, OR 97220 or email@example.com. If CD Baby provides notice to you, CD Baby will use the contact information provided by you to CD Baby. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
9. Dispute Resolution.
(a) Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND CD BABY AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(b) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to CD Baby, to you via any other method available to CD Baby, including via e-mail. The Notice to CD Baby should be addressed to: [CD Baby / ATTN: Joel Andrew / 9600 NE Cascades Parkway Suite 180 / Portland, OR / 97220] (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and CD Baby do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or CD Baby may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against CD Baby, then CD Baby will promptly reimburse you for your confirmed payment of the filing fee upon CD Baby receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and CD Baby agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND CD BABY AGREE THAT YOU AND CD BABY 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 PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that this Agreement and your use of the Site evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Applicable Law. This Agreement and your use of the Site shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and CD Baby under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Multnomah County, Oregon, and you and CD Baby hereby submit to the personal jurisdiction and venue of these courts.
(g) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which CD Baby seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by CD Baby or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against CD Baby, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(h) Claims. You and CD Baby agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, the use of the Site, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(i) Improperly Filed Claims. All claims you bring against CD Baby must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, CD Baby may recover attorneys’ fees and costs up to $5,000, provided that CD Baby has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
10. Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) CD Baby respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or any CD Baby service.
(b) CD Baby’s intellectual property policy is to (1) remove material that CD Baby believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” CD Baby considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Site and for whom CD Baby has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such Products or Submissions. CD Baby has discretion, however, to terminate the account or permission to access the Site of any user after receipt of a single notification of claimed infringement or upon CD Baby’s own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or any CD Baby service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit CD Baby to locate the material;
(iv) Information reasonably sufficient to permit CD Baby to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
(d) Designated Agent Contact Information. CD Baby's Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail : firstname.lastname@example.org
Via U.S. Mail : Attn: Joel Andrew, 9600 NE Cascades Parkway Suite 180, Portland, OR 97220
(e) Counter Notification. If you receive a notification from CD Baby that material made available by you on or through the Site or any CD Baby service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide CD Baby with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to CD Baby’s Designated Agent through one of the methods identified in Section 10(d) of this TOS, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which CD Baby may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10(c) of this TOS above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
(f) False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [CD Baby] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f). CD Baby reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 10 should be sent to the Designated Agent at the e-mail or postal address set forth above. Any other comments, compliments, complaints or suggestions about CD Baby, the operation of the Site or any CD Baby service or any other matter should be sent to email@example.com.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Oregon without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of CD Baby. CD Baby may freely assign or transfer any rights granted by you to CD Baby under these TOS. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and CD Baby are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect. The headings used in this TOS are for convenience only, do not constitute a part of this TOS, and shall not be deemed to limit or affect any of the provisions hereof.