No Depression TERMS OF USE

Last Updated: April 21, 2009

No Depression, its partners, contributors and licensors (collectively "ND”) welcome you to No Depression, your destination for the Americana, alt-country and roots music community since 1995.  ND provides you with access to an ever growing collection of Americana, alt-country and roots information while at the same time allowing you to enjoy an enriching social networking experience through this website (the “ND Site”).  Your access and use of the ND Site is subject to this Terms of Use ("TOU") and our Privacy Policy (“Privacy Policy”).  You are also subject to Ning’s Terms of Use and Ning’s Privacy Policy (“Ning’s Policies”).  If you do not agree to all of the terms and conditions of this TOU and our Privacy Policy (“ND’s Policies”) and to Ning’s Policies, you are NOT authorized to access or use the ND Site.  In the event of a discrepancy between ND’s Policies and Ning’s Policies, ND’s Policies shall govern.

The ND Site is composed of two areas; Member Areas and Public Areas.  “Member Areas” are those areas and features of the ND Site only accessible by users who have created a User Account.  “Public Areas” are those areas of the ND Site that do not require a User Account such as articles, reviews and the No Depression Store. 

USER REGISTRATION

While you may view the ND Site without being a registered user, to access Member Areas and certain features, information, forums and content, you will be required to register an account with ND (“User Account”).  When you create your User Account, you shall: (a) provide true, accurate, current and complete information about yourself (“User Data”); and (b) maintain and promptly update the User Data to keep it true, accurate, current and complete.  If you provide any information that ND reasonably believes to be untrue, inaccurate, not current or incomplete, ND may suspend or terminate your User Account.

ND’s registration process is facilitated by Ning ID.  While ND does protect your password and User Data in accordance with its Privacy Policy, you are ultimately responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur under your password or User Account. You should immediately notify ND of any unauthorized use of your password, User Account or any other breach of security.

DONATIONS

ND may, from time to time, accept donations from you for the ND Site and/or other activities or events that ND may be involved in.  If you choose to provide a donation to ND, you may be required to provide additional information and may be subject to additional terms and conditions  as required by any third party payment processor chosen by ND, in its sole discretion, to assist in the processing of donations.  All such terms and conditions are incorporated here by reference.

AGE RESTRICTION

The ND Site is not intended for minors under the age of thirteen (13).  Minors between the ages of thirteen (13) and seventeen (17) may use and access the ND Site with their parent or legal guardian’s consent, provided their parent or legal guardian assumes all responsibility and legal liability for the conduct of the minor including, without limitation, monitoring their access and use of the ND Site.  Minors under the age of thirteen (13) may not create a User Account.  ND may terminate or suspend a User Account of any minor if there is a failure to comply with this section.

PAID CONTENT

ND may allow for fee based content on the ND Site (“Paid Content”).  In the event ND allows Paid Content on the ND Site, such Paid Content may be subject to additional Ning and ND Policies.

USER CONTENT

ND does not claim ownership of audio, text, or video materials uploaded to or made available on the ND Site by you including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in such materials (collectively, “User Content”).  With regards to User Content, the ND Site is a passive conduit and ND is not responsible for the: (a) selection, acquisition, distribution and licensing of User Content it does not affirmatively obtain; and (b) acquisition and payment of any third party licenses, rights clearances or other permissions needed from unions, guilds or other entities to use User Content in the manner authorized by you.  ND has no obligation (and undertakes no responsibility or liability for any obligation) to review, monitor or oversee any User Content submitted, uploaded, distributed or retrieved in connection with the use of the ND Site.  Furthermore, ND assumes no responsibility for protecting or enforcing third party rights with respect to User Content, including, without limitation, monitoring the User Content, determining whether User Content is lawful, appropriate or permitted by third parties, for libel, falsehoods, errors or omissions contained in User Content, for compliance with FCC or other governmental regulations or for taking legal action against actual or suspected infringers of User Content.

User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such User Content originated.  This means that you, and not ND, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available via the ND Site.  ND does not control the User Content posted via the ND Site and, as such, does not guarantee the accuracy, integrity or quality of such User Content.  Under no circumstances will ND be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss, harm or damage of any kind incurred as a result of the use of any User Content.

LICENSE

By using the ND Site, you grant ND a royalty-free, sublicensable, transferable and worldwide license to use, distribute, modify, adapt, store, publicly perform, publicly display, reproduce, host, cache, reformat, translate, repurpose, publish, republish and encode User Content uploaded or otherwise made available by you in perpetuity for any purpose and in any medium now known or hereafter invented; this includes the right to include your User Content in ND’s printed or digital materials, marketing materials and /or anthologies.

MEMBER CONDUCT

You may not use the ND Site to:

a)     upload, post, e-mail, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

b)     impersonate any person or entity, including, but not limited to, a ND official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

c)     forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the ND Site;

d)     upload, post, e-mail, transmit or otherwise make available any User Content that: (i) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or (ii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

e)     upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;

f)      upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

g)     act in a manner that negatively affects other users' ability to engage in real time exchanges;

h)     interfere with or disrupt the ND Site or servers or networks supporting the ND Site, or disobey any requirements, procedures, policies or regulations of networks supporting the ND Site;

i)       intentionally or unintentionally violate any applicable local, state, national or international law and any regulations having the force of law;

j)       advertise commercial activities and/or sales without ND’s prior written consent (e.g. contests, sweepstakes, advertising or pyramid schemes);

k)     "stalk," harass or otherwise advocate the stalking or harassing of  another person; or

l)       collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through k above.

Additionally, you may not attempt to override or circumvent any security components of the ND Site.  Any unauthorized reproduction, publication, further distribution or public exhibition of the ND Site, in whole or in part, is strictly prohibited.

MEMBER DISPUTES 

You are solely responsible for your interactions with other the ND Site users.  ND reserves the right, but has no obligation, to monitor disputes between you and other users.

THIRD PARTY CONTENT

ND may provide various audio and visual materials through ND Site including, without limitation, text, logos, artwork, graphics, pictures, advertisements, applications, sound and other related intellectual property contained in such materials from third parties (collectively, “Third Party Content”).  ND provides this Third Party Content to enhance your experience using the ND Site.  All Third Party Content is displayed under license and the applicable third party retains all rights.  Regardless of your use of Third Party Content, you shall not acquire any right, title or interest in any Third Party Content or any derivative works thereof.

ND CONTENT

ND may provide various audio and visual materials through the Site including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in such materials (collectively, “ND Content”).  ND provides the ND Content to enhance your experience using the Site.  All ND Content is owned by ND and retains all right title and interest.  Nothing in this TOU shall be construed to grant you any right, title or interest in or to any ND Content or any derivative works thereof.

LINKS

The ND Site may contain links to other websites or resources as well as to Third Party Content, applications or other software originating from third parties.  ND does not monitor or check the accuracy of such third party materials and accordingly, ND has no control over such third party sites and resources.  ND: (a) is not responsible for the availability of such external sites or third party materials; and (b) does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such third parties.  You access third party links at your own risk.  You should review any terms and conditions and privacy policies prior to navigating to such third party site from the ND Site.

DEALINGS WITH ADVERTISERS

Your correspondence or business dealings with advertisers found on or through the ND Site are solely between you and such advertiser.  ND shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the ND Site.

CONTRIBUTIONS TO ND

You may choose to provide ND  unsolicited feedback, ideas, documents, suggestions or other information (“Contributions”).  By choosing to provide Contributions to ND, you grant ND a royalty-free, irrevocable, worldwide right to use such Contributions for any purpose (e.g. improving the ND Site or creating derivative websites, products or services).

From time to time, ND may solicit Contributions from you.  By submitting Contributions you agree the Contributions do not violate the rights of any third-party nor do they contain confidential or proprietary information.  Additionally, you agree your solicited Contributions are provided voluntarily and shall become the property of ND.  Solicited Contributions do not entitle you to any form of compensation or reimbursement regardless of how the Contribution may be used by ND.

MODIFICATIONS TO THE ND SITE

ND reserves the right at any time to modify or discontinue, temporarily or permanently, the ND Site (or any part thereof) with or without notice.

TERMINATION

ND may terminate your User Account without prior notice: (a) for breaches or violations of any term or condition of this TOU; (b) by request of law enforcement or other government agencies; (c) by your request; and (d) for any reason, or no reason, at any time in its sole discretion, with or without notice. 

E-Mail Opt Out

When you create a User Account, ND may use your User Data to send you e-mails periodically listing promotions, sweepstakes, events or changes relating to the ND Site or ND’s marketing partners or sponsors.  You have the choice to opt-out of receiving such promotional e-mails by following the instructions in such correspondence.  Once ND has processed your opt-out request, ND will not send you promotional e-mails unless you opt back in to receiving such communications.

ND NOTICES

ND may provide you with certain notices, including notices regarding changes to the TOU or Privacy Policy or new products and services.  These communications will be sent to the e-mail address you provided as part of your User Data are considered part of your ND membership; you will not be able to opt out of receiving them. 

BETA RELEASE

ND may make the ND Site available in pre-release forms or formats (“Beta Versions”).  The Beta Versions may contain different features than the final version that ND intends to distribute commercially.  ND reserves the right at any time not to release commercial versions of the Beta Versions, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics.  The Beta Versions may not be suitable for production or commercial use and may contain bugs or errors affecting their proper operation.  No Beta Versions should be used to support “mission critical” applications or in environments requiring fail safe or error free performance.

TRADEMARK INFORMATION

In no event shall any applicable ND trademark or service mark be deemed sold or assigned to you as a result of your acceptance of this TOU or by your use of the ND Site.  Any and all rights not expressly granted herein are reserved.

CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT

Copyright Infringement Notification

ND respects the intellectual property rights of others and we ask our users to do the same.  ND may, in appropriate circumstances and at its sole discretion, disable and/or terminate the User Account of a user who may be an infringer.  In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website located at http://www.copyright.gov/legislation/dmca.pdf, ND will promptly respond to claims of potential copyright infringement committed using the ND Site.  Copyright owners or a party authorized to act on behalf of an owner, should report potential copyright infringement by completing the following DMCA notice and delivering it to the ND Designated Agent (defined below).  Upon receipt, ND will take whatever action, in its sole discretion, it deems appropriate, including removal of the potentially infringing material and/or termination of the potential infringer’s User Account.

Please send either an e-mail to Info@nodepression.com (Subject: DMCA Notification), a facsimile to: 206-789-5867 (Attn: DMCA Notification), or letter to the address provided below with all of the following information:

a)     Identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

b)     Identify 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 locate the material.  Providing URLs in the body of an e-mail is the best way to help ND locate content quickly.

c)     Provide information reasonably sufficient to permit ND to contact you, the complaining party, such as an address, telephone number, and, if available, an electronic mail address.

d)     A statement that you, as the complaining party, or as one who has authorization to act on behalf of the copyright owner, has 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.  As an example, "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner or its agent."    

e)     A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  As an example,  "I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."

f)      Provide your full legal name and your electronic or physical signature.

Such written notice should be sent to ND’s designated agent (“Designated Agent”) as follows:

No Depression

DMCA Notification

7221 Second Avenue NW

Seattle, WA 98117

206-789-5867

info@nodepression.com

Copyright Infringement Counter-Notification

The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: http://www.copyright.gov/legislation/dmca.pdf.  To file a counter-notification with ND, a written communication that sets forth the items specified below must be provided.  Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.  ND will terminate any User Account who is a repeat infringer.  Accordingly, if you are not sure whether certain material infringes the copyright of others, you should contact an attorney.

To file a Counter-Notification, please send either an e-mail to Info@nodepression.com (Subject: DMCA Counter-Notification), a facsimile to: 206-789-5867, Attn: DMCA Counter-Notification), or letter to the address provided below with all of the following information:

a)     Identify the specific URLs of material that ND has removed or to which ND has disabled access.

b)     Provide your full name, address, telephone number, and e-mail address, and the username of the User Account.

c)     Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or King County, Washington if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

d)     Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."

e)     Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

Such written notice should be sent to ND’s Designated Agent as follows:

No Depression

DMCA Counter Notification

No Depression

DMCA Notification

7221 Second Avenue NW

Seattle, WA 98117

206-789-5867

Info@nodepression.com

What happens next? 

After ND receives a counter-notification, ND will forward it to the party who submitted the original claim of copyright infringement.  Please note that when ND forwards the counter-notification, it will include any personal information provided to ND and submitting a counter-notification requires unencumbered consent to having such information revealed in this way.  ND will not forward the counter-notification to any party other than the original claimant.  The claimant must then notify ND within ten (10) days that he or she has filed an action seeking a court order to restrain the potential infringer from engaging in infringing activity relating to the material distributed via the ND Site.  If ND receives such notification, ND will be unable to restore the potentially infringing material until resolution of any court action.  If ND does not receive such notification, ND may, at its sole discretion, reinstate the potentially infringing material.  If the potentially infringing material is User Content, ND will be unable to restore the User Content regardless of any outcome.  However, if the outcome of court is that the material was non-infringing, ND will allow the user to repost the User Content.

ND PRIVACY POLICY

User Data and certain other information about you are subject to our Privacy Policy. For more information, see ND’s Privacy Policy. 

COMPLIANCE WITH INTERNATIONAL LAWS 

The ND Site is of U.S. origin.  You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the ND Site.  For clarity, you, and not ND, shall be responsible for ensuring that your use does not constitute a criminal offense, give rise to civil liability or otherwise violates any applicable law, regulation or ordinance.

INDEMNITY

You represent and warrant that you have full authority to enter into and accept this TOU and grant the rights and licenses to ND herein.  With respect to User Content, you represent and warrant that no User Content submitted or otherwise uploaded, posted, transmitted, or shared by you on or through the ND Site will violate or infringe the intellectual property rights of any third party.  You shall defend, indemnify and hold ND, its subsidiaries, affiliates, officers, agents, employees, contributors, partners and licensors (collectively, the “ND Entities”) harmless against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with your breach of your obligations and warranties set forth herein.

DISCLAIMER OF WARRANTIES

YOUR USE OF THE ND SITE IS AT YOUR SOLE RISK.  THE ND ENTITIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE ND SITE OR THAT THE ND SITE SHALL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA.  THE ND SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE ND SITE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS.  ND IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND ND’S REASONABLE CONTROL.

FURTHER, THE ND ENTITIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE IN REGARDS TO ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, DOWNLOADED OR OTHERWISE ACCESSED BY YOU THROUGH THE ND SITE.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ND ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, GOODWILL, PERSONAL INJURY OR WRONGFUL DEATH) ARISING OUT OF THIS TOU, the ND SITE or USER CONTENT EVEN IF ND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOUR EXCLUSIVE REMEDY AND THE ND ENTITIES’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS TOU OR THE ND SITE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO FIVE HUNDRED U.S. DOLLARS ($500.00).  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS MAY NOT APPLY TO YOU.

CHOICE OF LAW; ARBITRATION

You agree that the laws of the State of Washington, without regard to principles of conflict of laws, will govern your use of the ND Site, this TOU, the Privacy Policy and any dispute of any sort that might arise between you and ND. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of Washington, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Washington.

YOU AND ND AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT OR THE ND SITE SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that the dispute may involve intellectual property or trade secrets (in such a dispute a party may seek injunctive or other appropriate relief).  Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively, the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.  To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE ND SITE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to any products or services provided by ND be instituted more than three (3) years after the cause of action arose.

GENERAL

This TOU and the Privacy Policy comprise the entire agreement between you and ND and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  ND reserves the right, in its sole discretion, to change, modify, add, or delete portions of this TOU and the Privacy Policy at any time without notice, and ND will post any such revisions on the ND Site.  You accept and acknowledge that your continued use of the ND Site constitutes acceptance of any such revision.  All notices, requests or other communications shall be in writing and sent via e-mail or US pre-paid post to the authorized representative of the other party.  If any part of this TOU is found to be illegal, unenforceable, or invalid, then that part shall be removed and remaining provisions will continue to be valid and enforceable.  Any services provided herein shall be construed to be on an independent contractor basis.  No joint venture, partnership, employment, agency or exclusive relationship shall exist between you and ND.  Any failure to enforce any provision of this TOU shall not constitute a waiver of such rights.  Your obligations under this TOU and your User Account may not be assigned, transferred or sold to any third party without prior written consent of ND.  ND has no obligation to allow for a transfer of a User Account upon death of a user, unless requested by the next-of-kin and then only with a valid death certificate.  All disclaimers, limitations, and restrictions of warranty shall survive termination of this TOU, as well as the provisions of this "General" section.

VIOLATIONS

Please report any violations of the Terms of Use to Customer Service at Info@nodepression.com.

CONTACTING ND

If you have any questions regarding this Term of Use, please feel free to contact us at:         

No Depression

7221 Second Avenue NW

Seattle, WA 98117

206-789-5807

Info@nodepression.com