1. ENROLLMENT IN THE SERVICE
ThaMidwest.com currently provides the Service for sampling and downloading media in a DRM-free file format. The Service consists of single subscription plan whereby, for a certain recurring fee and subject to certain limitations as described herein, you are granted specified download rights to our catalog of DRM-free media files. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to and/or view the media files. You must be at least 18 years of age to enroll. To begin the enrollment process, you must complete the Service registration process located on our web site at https://thamidwest.com/register-now/ (“Tha Midwest Site”) or such other registration process as we may provide from time to time.
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We may notify you of any such changes by posting a change notice on our site at https://www.thamidwest.com and/or by sending you an email at the email address associated with your Service account, at Tha Midwest’s sole discretion. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes shall be effective upon the date we notify you of the same (“effective date”). Your continued use of the Service following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. If any new products or services become available, they will be considered a part of the Service and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.
3. YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being the “Registration Data”). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service, as applicable. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as “IDs”). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of your you failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
5. TECHNOLOGICAL AND USE LIMITATIONS
5.1 ThaMidwest.com will make reasonable efforts to keep the ThaMidwest.com Site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of ThaMidwest.com may, from time to time, result in temporary service interruptions. ThaMidwest.com also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that ThaMidwest.com shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.
5.3 Because the Service is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of files. ThaMidwest.com reserves the right to immediately and permanently terminate your access to the Service if ThaMidwest.com believes that you are violating such limitation.
5.4 You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs. You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
5.5 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
5.6 ThaMidwest.com derives its rights to use the media offered on the Service from artists, record labels, publishers and other third parties for fixed periods of time and, sometimes, for limited territories. As well, ThaMidwest.com is sometimes required to pull certain media off the Service (or otherwise restrict access to such media) for legal or commercial reasons. Therefore, certain media offered or advertised by ThaMidwest.com may not be available when you try to download, and not all media are available in all countries.
5.7 Some tracks are not eligible for individual download and are only available as part of a full album download. Album only designations may be changed at any time.
5.8 You agree that you will not, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the Service or the content available on the Service. You agree to abide by the rules and policies established from time to time by ThaMidwest.com. Such rules and policies will be applied generally in a nondiscriminatory manner to users of the Service and software, and may include, for example, required or automated updates, modifications, and/or reinstallations of the software and obtaining available patches to address security, interoperability, and/or performance issues.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Only you may access the Service using your IDs, unless otherwise agreed to in writing by ThaMidwest.com. The content available through the Service is the property of ThaMidwest.com or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of ThaMidwest.com. You further agree not to make use of the Content in a manner that would infringe the copyright therein.
6.2 You acknowledge that ThaMidwest.com retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or its contents, and ThaMidwest.com reserves all rights not expressly granted hereunder. You shall promptly notify ThaMidwest.com in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or ThaMidwest.com’s patent, copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
6.3 By posting messages, inputting data, suggesting playlists, suggesting ideas or engaging in any other form of communication through the Service, you irrevocably agree that any such content, and all intellectual property rights associated therewith, shall become our sole property. We may copy, sublicense, adapt, publicly perform, display or otherwise exploit any such content and rights in any manner whatsoever, throughout the world, in perpetuity, without any obligation to make any payment to you or others or to give you credit.
7. THIRD PARTY SITES AND INFORMATION
8. OUR LINKING POLICY
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE THAMIDWEST.COM SITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE THAMIDWEST.COM SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THAMIDWEST.COM, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THAMIDWEST.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
12. CHOICE OF LAW AND CONSENT TO JURISDICTION
This Agreement is governed by the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).
13. OTHER IMPORTANT PROVISIONS
13.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.
13.2 You shall not use the Service in any manner contrary to local, state or federal law. ThaMidwest.com expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such local, state or federal law.
13.3 Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
13.4 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
13.5 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
13.6 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
13.8 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) (subject to any shorter limitation applicable pursuant to Section 6.9 above) and you hereby waive any longer statute of limitations that may be permitted by law.
13.9 To the extent it may be applicable, you agree with us to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
13.10 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.