Last Updated:  December 18, 2006

MusicETC.comTM Terms and Conditions

MUSICETC.COMTM SUPPLIES PROPRIETARY SOFTWARE TO ITS MEMBERS THAT FACILITATES IN THE LOCATION AND DOWNLOADING OF CERTAIN DOWNLOAD CONTENT (AS DEFINED HEREINBELOW) GENERALLY AVAILABLE ON THE INTERNET VIA THE GNUTELLA® NETWORK.  MUSICETC.COMTM DOES NOT HOST, SHARE OR IN ANY WAY SUPPLY ANY DOWNLOADABLE CONTENT TO ITS MEMBERS. 

Welcome to the Music, Etc.TM website located at www.musicetc.com (the "Website," "Music, Etc.TM," "us" or "we").  You must fully agree to these Music, Etc.TM Terms and Conditions (the "Agreement") before accessing or using the Website, signing up for a Music, Etc.TM membership ("Membership") and/or installing the Music, Etc.TM software  ("Download Software").  Please be advised that visitors to the Website, who may or may not become members ("Visitors"), are also subject to this Agreement.  Please read this Agreement carefully.  By accessing and/or using this Website, the Download Software and/or the Service (as described hereinbelow), you hereby agree to this Agreement, in its entirety.  In addition, you represent and warrant that you are a legal U.S. resident at least eighteen (18) years of age and that you have the right, authority and capacity to enter into this Agreement and to abide by all of its terms and conditions.  This Agreement is subject to change at any time, without notice, and such changes are effective upon their posting at the Website.  Bookmark this page and check it frequently as it is up to you to refer to this page for any amendments and/or changes to the original Agreement.  If you do not agree to this Agreement in its entirety, you are not authorized to access and/or use this Website, the Download Software and/or the Service in any manner or form, whatsoever.

1.       The Service.

a)       The Music, Etc.TM download system (the "Service") allows Music, Etc.TM members ("Members") to access and download content (including, without limitation, music files, movies, games, software and/or pictures) generally available for downloading over the Internet via the Gnutella® Network (collectively, the "Download Content"), through use of our proprietary Download Software.  Music, Etc.TM provides the Service and associated Download Software only and is in no way involved in the provision of, and makes no representation as to the legality of, Download Content.  The Service and Download Software are made available to our Members, subject to the terms and conditions of this Agreement.

b)       To obtain access to the Service, you must register and pay for Membership and install the Download Software on your personal computer.  To register, you must supply certain registration data including, without limitation, username, password, full name, telephone number, e-mail address, mailing address and credit card information for billing purposes (collectively, "Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data, as necessary, to maintain it in an up to date and accurate fashion.  Music, Etc.TM will use your Registration Data in accordance with the terms of our Privacy Policy.

c)       Your Membership is non-transferable.  Access to, and use of, the Service is through a combination of both user name and password ("Login").  You must keep your Login strictly confidential.   For security reasons, Music, Etc.TM will not release passwords for any reason, other than to the applicable Members themselves, except as may be specifically required by law and/or court order.   You agree that you will not authorize and/or permit third parties to use your Membership.   Music, Etc.TM shall not be responsible for any unauthorized use of your Membership.   Furthermore, unauthorized access to the Website, Download Software and/or Service is a breach of this Agreement, violation of applicable law and subject to your obligations of indemnification as set forth in Section 11 hereinbelow.

2.       License Grant.      

a)       As a Visitor, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Website (and its associated content) in accordance with this Agreement.  Members are, in addition to the right to use the Website, granted a non-exclusive, non-transferable, revocable and limited license to install and use the Download Software and Service in accordance with this Agreement. 

b)       If you are a Visitor, your limited license is provided solely for you to access the Website in order to obtain information related to Music, Etc.TM and/or to apply for Membership.  Visitors are not authorized to install, or attempt to install, the Download Software and/or to otherwise use the Download Software and/or Service.

c)       Members may access and download Download Content through use of the Download Software.  Download Content is generally available on the Internet through use of the Gnutella® open sharing network.  Download Content is owned and/or licensed by third parties and is thereby protected by applicable intellectual property rights and laws.  You understand and agree that Music, Etc.TM makes no representation or warranty regarding the legality of any Download Content that you may access and/or download.  You agree that you are fully responsible for any and all resulting liability arising from your download, storage and/or use of Download Content. See Section 3 herein for our Acceptable Use Policy. 

d)       Unless otherwise stated, any and all Download Software upgrades shall be subject to the terms of this license grant. 

e)       You may use the Website, Download Software and/or Service, as applicable, on one (1) computer for your own personal and non-commercial use. 

f)         No part of the Website, Download Software, Download Content and/or Service may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical.  You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website, Download Software, Download Content and/or Service or any portion thereof. Systematic retrieval of Website content, Download Content, Services or other content from the Website by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Music, Etc.TM is prohibited. You may not exploit any aspect of the Website content, Download Content and/or Services for any commercial purpose not expressly permitted by Music, Etc.TM.

g)       You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website and/or Service.  You may not take any action that imposes an unreasonable or disproportionately large load on the Music, Etc.TM infrastructure. 

h)       Download Content consists of copyrighted and/or other proprietary subject matter and this Agreement, and all other applicable laws, rules and regulations, govern your downloading and use of any and all Download Content.

i)         A Member's license shall automatically terminate when the Member's subscription expires.  However, Music, Etc.TM may terminate any license granted herein at any time for any reason, or no reason whatsoever. 

j)         Any and all rights not expressly granted to you in this Agreement are reserved by Music, Etc.TM.

3.       Member’s Representations and Warranties.

a)       As a Member, you represent, warrant and agree that you will:

i)         obtain and pay for any and all necessary rights, consents, authorizations, commissions, royalties and/or licenses for any Download Content that you obtain through use of the Download Software and Service;

ii)      not impersonate any person or entity, or falsely state, or otherwise misrepresent, your affiliation with a person or entity;

iii)        not access and/or download any file that infringes upon any patent, trademark, trade secret, copyright or other proprietary rights of any third party;

vii)     not intentionally, or unintentionally, violate any applicable local, state, federal or international laws, rules or regulations including, but not limited to, any and all foreign export laws;

vii)     not "stalk" or otherwise harass another Member; and

viii)       not collect or store personal data related to other Members.

4.       Proprietary Rights.

The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Website, Download Software and Service are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights.  The copying, redistribution and/or publication by you of any part of the Website, Download Software and/or Service is strictly prohibited.  You do not acquire any ownership rights to any Download Content and/or other materials downloaded and/or viewed at or through the Website, Download Software and/or Service.  The availability of Download Software, information and/or material at the Website and/or through the Service by Music, Etc.TM does not constitute a waiver of any rights therein.

5.      Pricing.

a)       You agree to pay for all charges associated with the Service.  Such charges shall be disclosed to you at the time of registration.  Music, Etc.TM offers a variety of plans to pay for a membership, including one-time pricing options, and monthly recurring options. The terms and price of your account will be made clear and prominently displayed at the time of registration.   Also, if you choose to purchase other goods and/or services at the Website, we will then charge you for the applicable goods and/or services.

b)       Music, Etc.TM will notify you approximately thirty (30) days prior to the expiration of your Membership.  At that time, you will be provided with the opportunity to continue your Membership, possibly at a discount renewal rate.  Our discount renewal rates are subject to change.  If you allow your Membership to expire, your Download Software license will expire and you will no longer be able to use the Download Software and/or Service.

c)       All charges will be billed to the credit card that you supplied as a part of your Registration Data, or to any other valid credit card that you may so designate from time to time.  Music, Etc.TM may, in its discretion, bill any charges to you through an authorized payment processor and, in such case, the charges will appear in the name of such payment processor. 

d)       You are responsible for keeping your Membership secure and confidential and you will be responsible for any charges that are incurred by any person through authorized or unauthorized use of your Membership.  If any of your billing information changes, you must update that information in the "Membership" section of the Website.  All prices are subject to change at any time, in our sole discretion.  In addition, Music, Etc.TM reserves the right to change this pricing policy at any time.

6.   Refund and Cancellation Policy

You may cancel your Membership at any time by contacting us through our Support Site. By purchasing a Membership, you agree to abide by our refund policy, as set forth herein.  Please do not contact our affiliates, vendors, marketers, payment processors or any other service providers regarding a refund request. To request a refund, you may do so through this link.

All refund requests will be addressed in the order that they are received, and must be sent properly through our Refund Request Form and must contain all required fields on the refund request form and provide a legitimate reason for requesting a refund   Per our “100% Satisfaction Guaranteed” policy, we will refund 100% of customers who contact us through the Support Site, request a “refund”, provide full information required for the form, and provide a valid reason for requesting a refund.

7.       Modifications, Changes to Website and Service.

a)       Music, Etc.TM reserves the right, at any time, to modify or discontinue, temporarily or permanently, the Website and/or Service (or any part thereof) with or without notice to you, without any liability to you or to any third party.

b)       Music, Etc.TM may, from time to time, present you with programming fixes, updates and upgrades, including updated versions of the Download Software.  You may reject such programming fixes, updates and upgrades, although such rejection may materially interfere with the operation of the Download Software and/or Service.

8.       Privacy Policy.                  

Use of the Website, Download Software and/or Service are subject to our Privacy Policy, which is hereby incorporated into, and made part of, this Agreement.  We reserve the right, and you authorize us, to use and assign all information regarding your Website, Download Software and/or Service use, and any and all other personal information provided by you, in any manner consistent with our Privacy Policy.  For additional information regarding our use of information collected, please refer to the Music, Etc.TM Privacy Policy.

9.       Third Party Resources and Websites. 

a)       Music, Etc.TM reserves the right to present advertisements and promotional offers on the Website and Download Software.  The timing, frequency, placement and duration of such advertising is subject to change and shall be determined in the sole discretion of Music, Etc.TM.

b)       The Website may provide, and/or third parties may provide, links to other Internet websites and/or resources.  Because Music, Etc.TM has no control over such third party websites and/or resources, you hereby acknowledge and agree that Music, Etc.TM is not responsible for the availability of such third party websites and/or resources.  Furthermore, Music, Etc.TM does not endorse, and is not responsible for the accuracy of, any terms and conditions, privacy policies, content, advertising, products, services and/or other materials located on or available from such third party websites and/or resources, or for any damages and/or losses arising from your access or use thereof.

c)       Music, Etc.TM may make third party software available for purchase on the Website and/or through Download Software.  Such software shall be subject to a separate licensing agreement governing the software's download and use.  

10.       Injunctive Relief.  

You agree that any unauthorized and/or unlawful use of the Website, Download Software and/or Service would result in irreparable injury to Music, Etc.TM for which money damages would be inadequate.  In such event, Music, Etc.TM shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against you without the need to post a bond.  Nothing contained in this Agreement shall be construed to limit any legal remedies available to Music, Etc.TM.

11.   Indemnification.   

You agree to indemnify, defend and hold Music, Etc.TM, its parents and subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to:  1) your breach of this Agreement and/or any representation or warranty contained herein; 2) your use of the Website, Download Software and/or Service, in any manner whatsoever; 3) any claim concerning your alleged unauthorized and/or unlawful downloading of any Download Content; and 4) any unauthorized use of your Membership.

12.   Termination.         

Music, Etc.TM may, in its sole discretion, terminate this Agreement and/or suspend your Membership at any time without notice to you, in the event that you breach (or Music, Etc.TM reasonably suspects that you have breached) any provision of this Agreement or for no reason at all.  If Music, Etc.TM terminates this Agreement, terminates your license to use Download Software and/or suspends your Membership for any reason, Music, Etc.TM shall have no liability or responsibility to you.  Moreover, Music, Etc.TM will not refund any amounts that you have previously paid for the Download Software and/or Service.  You understand and agree that the cancellation of your Membership is your sole right and remedy with respect to any dispute with Music, Etc.TM.

13.   WARRANTIES AND LIMITATION OF LIABILITY

a)       THE WEBSITE, DOWNLOAD SOFTWARE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).  THE WEBSITE, DOWNLOAD SOFTWARE AND/OR SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.  MUSIC, ETC.TM HAS NO LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY FOR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, DOWNLOAD SOFTWARE AND/OR SERVICE.  IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, MUSIC, ETC.TM IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MUSIC, ETC.TM AND YOU.  THE WEBSITE, DOWNLOAD SOFTWARE AND/OR SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE WEBSITE, DOWNLOAD SOFTWARE AND/OR SERVICE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

b)       ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES AND/OR WORMS CONTAINED WITHIN DOWNLOAD CONTENT IS EXPRESSLY DISCLAIMED.  YOU UNDERSTAND AND AGREE THAT ANY DOWNLOAD CONTENT DOWNLOADED BY YOU IS DONE SOLELY AT YOUR OWN DISCRETION AND AT YOUR OWN RISK.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA THAT MAY RESULT FROM ANY AND ALL DOWNLOAD CONTENT.  YOU ARE ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE DOWNLOAD SOFTWARE AND/OR SERVICE THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.  

c)       MUSIC, ETC.TM MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO DOWNLOAD CONTENT, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE QUALITY AND QUANTITY OF DOWNLOAD CONTENT.  YOU MAY BE UNABLE TO DOWNLOAD THE DOWNLOAD CONTENT OF YOUR CHOOSING, OR OBTAIN ANY DOWNLOAD CONTENT AT ALL, THROUGH USE OF THE DOWNLOAD SOFTWARE.  MOREOVER, ANY DOWNLOAD CONTENT THAT YOU SUCCESSFULLY DOWNLOAD MAY NOT FUNCTION AT ALL ON  OR WITH YOUR COMPUTER SYSTEM.  IN ADDITION, MUSIC, ETC.TM DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LEGALITY OF ANY MEMBER'S USE OF DOWNLOAD SOFTWARE AND/OR SERVICE.

d)       UNDER NO CIRCUMSTANCES SHALL MUSIC, ETC.TM BE LIABLE TO YOU OR ANY THIRD PARTY IN ANY MANNER WHATSOEVER ARISING FROM YOUR USE OF THE WEBSITE, DOWNLOAD SOFTWARE AND SERVICE.  IN ADDITION, MUSIC, ETC.TM WILL NOT BE LIABLE FOR YOUR UNLAWFUL OR UNAUTHORIZED USE OF THE DOWNLOAD SOFTWARE AND/OR SERVICE.  OUR MAXIMUM LIABILITY TO YOU AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO THE PURCHASE PRICE THAT YOU HAVE PAID FOR THE DOWNLOAD SOFTWARE AND SERVICE.  NOTWITHSTANDING THE FOREGOING, MUSIC, ETC.TM SHALL NOT BE LIABLE TO YOU FOR ANY SERVICES, GOODS OR INFORMATION AVAILABLE FROM THIRD PARTIES, EVEN IF OBTAINED AT OR THROUGH THE WEBSITE, DOWNLOAD SOFTWARE AND/OR SERVICE.

14.   Other Restrictions.

The Website, Download Software and/or Service are available only to individuals who can enter into legally binding contracts under applicable law.  Notwithstanding the foregoing, the Website, Download Software and/or Service are not intended for use by individuals under the age of 18.  If you are under the age of 18, you do not have authorization to access and/or use the Website, Download Software and/or Service.  Currently, the Website, Download Software and/or Service are only available to legal residents of the United States. You understand and acknowledge that you may not register for, access or use the Website, Download Software and/or Service from countries and/or territories other than the United States and the District of Columbia.  You agree to abide by the applicable United States export control laws and any other applicable laws, rules and/or regulations with respect to the Download Software.

15.   Copyright Infringement Policy.  

Music, Etc.TM respects the intellectual property rights of others, and we ask that our Members do the same.  If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated at the Website and/or through the Service, please provide the Music, Etc.TM copyright agent with the following information:

o         A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

o         Identification of the copyrighted work claimed to have been infringed or, in the case of multiple copyrighted works, a representative list of such works.

o         Identification of the 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 Music, Etc.TM to locate the material.

o         Information reasonably sufficient to permit Music, Etc.TM to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted.

o         A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.

o         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.

o         Please send the requested information to:  By mail:  Copyright Claims, c/o Music, Etc.TM, 300 Hylan Dr, #166, Rochester, NY 14626 or through our contact page: http://cs.musicetc.com.

16.   Equipment.

You shall be responsible for obtaining and maintaining all telephone, computer hardware and any and all other equipment necessary for access to, and use of, the Website, Download Software, Download Content and/or Service, and all charges related thereto.  Members are solely responsible for obtaining and maintaining software and/or hardware to view, listen to and/or use Download Content.

17.   Miscellaneous.

a)       This Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles).  Should a dispute arise concerning the terms and conditions of this Agreement, or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York City, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association.  Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.  Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration.

b)       Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

c)       To the extent that anything in or associated with the Website, Download Software and/or Service are in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

d)       Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. 

e)       Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship betweenyou and Music, Etc.TM.  You will have no authority to make or accept any offers or representations on Music, Etc.TM's behalf.

18.   Force Majeure.

You agree that Music, Etc.TM will not be liable, or be considered to be in breach of this Agreement, on account of our delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond our reasonable control and that we are unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event").  If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, results of vandalism or computer hacking, Internet or telecommunications failure, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, we will give you notice and will use commercially reasonable efforts to minimize the impact of any such event.

19.   Legal Warning.     

Any attempt by any individual, whether or not a Member, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of this Website, Download Software and/or Service, is a violation of both criminal and civil law and Music, Etc.TM will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.

20.   Customer Service.

You may reach a Music, Etc.TM customer service representative through our support site: http://cs.musicetc.com.