Terms of Service

Last Modified: April 9, 2024

Applicability

These Terms of Service (the “Agreement”) apply to users of the www.bandzoogle.com (the “Website”) who have created an account on the Website and who receive Services (as defined below) from Bandzoogle.com (“Bandzoogle”) through the use of a client portal reached by clicking on the “Sign In” button on the Website (the “Portal”).

Acceptance of the Terms of Service

These Terms of Service are entered into by and between you and Bandzoogle (“Company”, “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern your access to and use of the Services, including any content offered on or through the Portal, if part of such Services. “You” or “you” as used in these Terms of Service means either, and as applicable: (i) you, personally, if you are an individual artist operating as a sole proprietorship or other unincorporated association, including as a member of a group of artists (“Band”) not formed as a legally separate entity such as a corporation or limited liability company (each an “Entity”), or (ii) you and each other member of your Band if organized as an Entity. If “you” refers to an Entity, then you represent and warrant that you have the due and full authority to enter into this Agreement on behalf all members of the Band and acknowledge on your behalf and theirs that these Terms of Service are binding and enforceable against each member of the Band.

Please read these Terms of Service carefully before you start to use the Portal or to receive or make use of any Services. By creating an account on the Website, or using the Services, you accept and agree to be bound and abide by these Terms of Service. Each time you access or use the Website, you are also subject to and agreeing to be bound by the Terms of Use posted thereon. If a conflict arises between the Terms of Use or Privacy Policy posted to the Website and the terms of this Agreement, the terms of this Agreement shall control.

Changes to the Terms of Service

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them.

Your continued use of the Portal or receipt of Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Services

After creating an account on the Website, you will be provided with access to the Portal, where you may (i) create a personalized website for yourself (the “Band Site”), (ii) select what third party analytical tools you wish to use on your Band Site, (iii) make use of certain available marketing, communications and fan outreach tools available to you on the Band Site, (iv) select additional features available on the Band Site, and/or (v) add products and services you wish to offer for sale on your Band Site. The Band Site capabilities and functionality are described at https://bandzoogle.com/features (the “Documentation”).

While we make promotional tools available to you, how you use these tools is up to you. We cannot and do not guarantee that you will achieve any particular or desired results from the use of our tools.

The offering to you of the Portal, the hosting of the Band Site (or causing the Band Site to be hosted) to make it accessible to your invitees to your Band Site, and providing the ancillary back-end services and support required to maintain the Band Site in operation pursuant to the terms of this Agreement shall be referred to herein as the “Services”.

You will have the ability to select a password to log onto the Portal, which will give you access to the tools to manage your Band Site. You will use a secure, unique password for your account. You are responsible for any activity that occurs through the use of your login credentials. If you become aware of or suspect that your user credentials have been compromised, lost or stolen, you must inform us immediately so that we may issue you replacement credentials.

The Services, including the features, content and look and feel of your Band Site, may change from time to time in our discretion. Your continued use of the Services, including the Band Site, after such a change constitutes your acceptance to such modifications. If you have already chosen a particular look and feel of your Band Site (a “skin”) when such changes occur, we may allow you to continue using that skin after we discontinue its use by other bands, but we may also terminate your use in our discretion and at our option (in which case you will have to select a new skin to continue making the Band Site available to your invitees).

We will provide the Services to you throughout the Term (as defined below) of this Agreement only.

Free Trials or Free Services

From time to time, we may make free or trial versions of the Services (“Free Trials”) available to you at no charge. You may choose to use such Free Trials at your sole discretion. Subject to the below disclaimers, any use of Free Trials is subject to these Terms of Service. We may end any Free Trials in our sole discretion. No support-related Services apply to Free Trials.

ANY DATA OR CONTENT THAT YOU ENTER INTO FREE TRIALS MAY BE PERMANENTLY LOST.

NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES”, “INDEMNIFICATION”, AND “LIMITATIONS ON LIABILITY” SECTIONS HEREIN, DURING FREE TRIALS, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO FREE TRIALS, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE COMPANY’S AGGREGATE LIABILITY WITH RESPECT TO FREE TRIALS SHALL NOT EXCEED $500.00 USD.

Your Content

You are responsible for Your Content, including for uploading it to your Band Site. You are also responsible for ensuring that Your Content is legally obtained. “Your Content” means the words you choose to use in the domain name you select, and all data and information which You upload to the Band Site, including: (i) contact information of your Band Site invitees and all associated information about such persons; (ii) your files, such as your music, recordings, and videos; (iii) information about you and your products or services; (iv) your calendar information as maintained on the Band Site, including all band schedules; (v) your newsletters prepared on and sent through the use of the Band Site; (vi) your e-mails to and from invitees to your Band Site which are sent or received on the Band Site; (vii) information about your products sold using the Band Site e-commerce operations (but please see section “E-commerce on Bandzoogle” below for additional information on e-commerce functionality); (viii) your trademarks, service marks, and branding; (ix) information about your activities on social media linked to or visible from the Band Site; and (x) all content that you upload or use in connection with the Services or your marketing efforts, including all audio and/or visual content containing the name, image and/or likeness of individuals.

We do not control or actively monitor Your Content. However we reserve the right at all times to remove or refuse to distribute any of Your Content which breaches our policies, and to terminate your rights to use the Services (and reuse your user-name for another Entity or Band). We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of users and the public.

Additional Features

You may have the ability to engage advertising partners and have those partners serve ads to your invitees to your Band Site, and to have them provide certain search engine optimization and search engine marketing tools. The Band Site also may allow you to select from several website analytics services, should you wish to use them. If you use any of these third party tools or services, you hereby represent that such activities are undertaken at your own risk. These third party tools and services are provided as a convenience only, and it is your responsibility to understand when, where or how their use is appropriate and legal.

You have the ability to post legal terms and conditions, and to post privacy notices or policies, on your Band Site. It would be advisable for you to engage legal counsel to advise you on whether you should post such notices or terms, and what information and disclosures such terms or policies/notices should contain.

You may be able to integrate some features of your Band Site with social media, such as Facebook and Instagram. When doing so you acknowledge and agree that the terms of use or service of those social media sites apply to such integrations and to any information you send or receive from such sites. Please review those terms carefully before installing any such features or integrating any data between the Band Site and those sites. We are not responsible for your use of these social media integrations or any data that you share with such third party platforms. You acknowledge and agree that your use the social media integration tools at your own risk, and you release us from all liability arising from your use of such sites.

Compliance with Laws

We agree to comply with all applicable United States and Canadian laws in our performance of the Services. We also agree to comply with the requirements of the Payment Card Industry Data Security Standard (“PCI Requirements”), as applicable to us, which is designed to protect credit card information from unauthorized disclosure, theft or loss. For the protection of your Band Site invitees making purchases on the Band Site, we will contractually obligate all payment processors we have control over to process credit card transactions on your behalf to also be compliant with PCI Requirements.

You agree that you will comply with all applicable laws in your use of the Band Site, and in your interactions with visitors to your Band Site, including providing all required notices (e.g., posting a privacy policy which informs about what information you collect from your invitees, and how you use such information), and complying with all other privacy and data security laws.

Band Site Updates and Upgrades

From time to time, we may develop updates or implement enhancements or other changes to your Band Site. We will also from time to time modify the back-end software that runs your Band Site. You specifically grant us permission to do this whenever we push an update, upgrade, bug fix or patch to all customers similarly situated to you. Occasionally, this will require the Band Site to be unavailable to you or your visitors for a brief period of time. We apologize for the inconvenience this may cause, but unfortunately, we must perform these regular maintenance activities to maintain your Band Site’s performance over time.

Domain Names

With certain services, Bandzoogle will provide one (1) free domain name with the new purchase of a paid plan. The free domain name applies only to the following top-level domains, and only if you sign up for a Service that includes this offering: .com, .net, .org, .biz. For plans that do not include a domain name, you may elect to add one to your account for a fee as set forth on our Website. In addition, if you choose, you can select and purchase additional domain names through our Services. Fees for domain names may vary, depending, at least in part, on the top-level domain selected.

The purchased or included domain name is yours to keep, except as otherwise set forth herein. We register the domain in Bandzoogle's name, but will unlock and transfer it to your name upon cancellation of an active paid account, or upon request anytime during the term of your active paid account membership. Please note, however, that we do not have the ability to transfer a domain to you during the initial 90 days after we register it. Notwithstanding the foregoing, if a domain is in Bandzoogle’s name at the time that your account becomes inactive for any reason (including but not limited to non-payment or violation of these Terms of Service), any domain name in your account will remain registered to Bandzoogle. In this case, Bandzoogle has the right to retain the registration of the domain for its own purposes, sell or transfer the domain to a third party, or delete the domain and allow any new registrant to register it.

Except as otherwise stated herein, we will continue to renew your Band Site domain name throughout the Term of this Agreement, provided you continue to timely pay all fees when due hereunder and are not in breach of these Terms of Service.

If Bandzoogle sends you the unlock code for a domain, it is your responsibility to transfer the domain to a new registrar, if you so choose. We will not renew domains after the end of the Term of this Agreement, so please keep that in mind when submitting your cancellation request or otherwise terminating this Agreement.

You may purchase additional domains, subject to availability, for $14.95 per year (which fee is subject to change from time to time in our discretion). Additional domains are not renewed automatically.

Under no circumstances will Bandzoogle be liable for any damages relating to domains, including but not limited to failure or errors in renewing, transfer, or registration of domains, even if such failure is ours.

E-commerce on Bandzoogle

The Services include the option for you to sell goods and services directly to invitees to your Band Site. Bandzoogle provides the platform to offer sales, but all transactions occur at our third party transaction processors, PayPal or Stripe. All transactions are subject to the terms and conditions of Paypal or Stripe, as applicable, and you must have a PayPal or Stripe account independent of your account with us for the Band Site in order to accept such payments. Further, Bandzoogle is not responsible for, and does not have access to, any aspect of transactions that happen on our platform aside from the items that were included in a specified transaction.

By using any e-commerce components of the Services, you agree to not sell products that, in our discretion:

  • Infringe or potentially infringe on the copyrights of another person;
  • Constitute illegal or potentially illegal products;
  • Are offensive, violent, pornographic, or otherwise deemed inappropriate.

We reserve the right to disable or remove any products that are in violation of the terms of this Agreement without warning.

Your Additional Obligations

In addition to any other obligations you have as set forth in this Agreement, you agree that you will:

  1. maintain an active email account on record with us at all times;
  2. maintain at all times your own devices and resources to obtain access to the public Internet;
  3. protect the confidentiality of your login credentials to the Portal and ensure that nobody other than you uses such credentials;
  4. not use any other person’s login credentials;
  5. not sell, resell, rent or lease the Services or the Band Site or use it as a service bureau, or otherwise for the benefit of third parties (except that your invitees to the Band Site may see Your Content and purchase your products and services as you make same available);
  6. not impersonate any other person or group through or on the Band Site;
  7. not use your Band Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or intentionally store or transmit material in violation of third party privacy rights;
  8. not use profanity, obscenity, racist terms, or other language that may be offensive to visitors to your Band Site;
  9. not use your Band Site to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (collectively, “Harmful Code”);
  10. not interfere with or disrupt the integrity or performance of our systems or networks or those maintained on our behalf for the purpose of providing services to our customers;
  11. not copy, frame or mirror any part or content of the Band Site;
  12. not attempt to obtain a copy of, or disassemble, reverse engineer or decompile the Band Site or any portion thereof;
  13. not upload, post, email, transmit or otherwise make available on your Band Site any material that interferes with or disrupts the Bandzoogle Service, or which probes, scans, or tests the vulnerability of any system or network;
  14. not attempt to breach or circumvent any security or authentication measures;
  15. not attempt to gain unauthorized access to any back-end systems, hardware, software or networks, which we maintain or are maintained on our behalf;
  16. not access or attempt to access restricted portions of the Band Site or our systems;
  17. not download, copy, publish or distribute on the Band Site any copyrighted or other protected materials without the specific written permission of the owner of such materials; and
  18. not engage in denial of service attacks.

Fees and Payment

You agree to pay us in advance, based on the schedule of payments you agreed to when you signed up for a Service. All such fees are non-refundable. Our pricing plans are set forth on our Website, at https://bandzoogle.com/pricing. Once you select your pricing plan, we will begin to charge you for the Services you selected.

Credit card, PayPal or Stripe chargebacks will incur a fee of $100 to reinstate accounts. Band accounts that incur chargebacks may be permanently deleted in our discretion.

Domain registration and setup fees are non-refundable.

From time to time we may offer promotional codes or offers that apply a discount to service plans. Only one promotional offer or code may be used per Band Site at a time; they may not be combined or stacked.

You acknowledge and agree that our fees may change from time to time, and when they change, the new fees will be posted to our Website. You agree to be bound by, and pay the new fees, as they change from time to time, of course, always subject to your termination rights as set in this Agreement. The fees listed on our Website do not include applicable Taxes. “Taxes” means any sales, value added tax, use, and other taxes (other than taxes on either party’s income or assets), export and import fees, customs duties and similar charges imposed by any government or other taxing authority. If we think any Taxes apply to your receipt of our Services, we will charge you for those applicable Taxes when we charge you the corresponding fees. We agree to disburse all such Taxes to the applicable taxing authority on your behalf.

Proprietary Rights

Our Website, the Portal and the Band Site, and their entire contents, features, and functionality, including all trademarks, business names, information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, but excluding Your Content (collectively, “Our Content”), are owned by the Company, its affiliates, their respective licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

We hereby grant to you, throughout the Term only, a worldwide (except in countries which are subject to legal restriction or embargo), limited, non-exclusive, non-transferable (except as permitted herein), non-assignable (except as permitted herein) license for (i) you and your invitees to access and view your individual Band Site located thereon, and (ii) for you to make use of the Services as it pertains to your Band Site as contemplated in the Documentation, provided you do so for your own purposes and not for the benefit of any third parties (except as otherwise specifically permitted herein or in the Documentation).

As between you and us, you exclusively own all right, title and interest in and to all Your Content. You hereby grant to us, our affiliates and our service providers a non-exclusive, non-transferrable (except as permitted herein), non-sublicensable (except as needed for our service providers to assist us in performing the Services), limited, revocable license, solely for the Term, to access, store, process, transmit, distribute and publish Your Content solely as required in order to provide Services hereunder.

You agree that we and our affiliates and service providers are permitted to collect, access, process, store, and use in perpetuity (i) any technical, aggregated information, including any information which may be attributable to any particular invitee to your Band Site or to you (but not any information which may be considered personally identifiable information); (ii) information pertaining to how the Band Site is browsed and searched, such as which features are used the most or are popular for some types of users; and (iii) all sales amounts processed through the Band Site (but not to whom such sales were made); provided we do so solely to evaluate features of our Website and your and other Band Sites, and for the purpose of improving our services.

You understand and agree that your Band Site contains third party materials and services. Those materials and services are licensed to you solely for use on the Band Site as contemplated in the Documentation and only for so long as the owners of such materials and services permit us to make them available to you. You acknowledge and agree that if the owner of such materials or services terminates our license or right to make them available to you, they will be removed from the Band Site, and you accept this risk.

The Services are licensed, not sold. Except for the limited rights expressly granted by each of the parties hereunder, no other rights are granted. All rights not specifically granted herein are otherwise reserved.

Each party agrees to refrain from any use or registration of the trademarks of the other party, or of any confusingly similar marks, except with respect to any trademarks included within the Band Site which you upload (in which case you grant to us a limited license to display, publish, and process such trademark as part of Your Content). If you add your name to our client list, you also grant us a right to use your name on such list, and to display, publish, and process your name as you entered it in furtherance of our business.

Term and Termination

The term of this Agreement begins on the day you sign up to receive the Services by creating an account on our Website, selecting a pricing package, and paying your first monthly installment of recurring subscription fees (the “Effective Date”). This Agreement will continue in effect until either party terminates pursuant to the terms of this Agreement (the “Term”).

You can upgrade/downgrade your Service at any time by going to the Portal and changing your plan after signing in. We will credit you the pro-rated amount of days of the new plan. However, we cannot provide refunds or cash credits for downgrades.

You may terminate this Agreement at any time. To do so, you must click the "Cancel" link in the "Account" section of the Portal (which may be labeled as your “control panel” within the Portal), which you will find after signing into the Portal. Cancellation requests by email or live chat will not be accepted. Cancellation must be submitted two (2) business days prior to the rebilling date.

We may terminate your access to the Band Site and use of any Services immediately (i) if you breach any provision of this Agreement, (ii) if you fail to pay recurring fees when due, (iii) if we lose any right or license required for us to make the Services or the Band Site available to you or your invitees, (iv) if we cease providing Services to our general customer base or we make material modifications to the Services; (v) if required to do so by law, or due to a change in applicable law; (vi) if you violate the law or these Terms of Service; or (vii) if unexpected technical, security or legal issues or problems arise.

Upon termination of this Agreement for any reason, (i) you will lose the right to access the Portal and the Band Site, (ii) we will promptly delete your Band Site and all of Your Content, except as required by law, and (iii) you must pay any outstanding amounts you owe us for use of Services throughout the Term. Please plan your cancellation of this Agreement accordingly.

Provisions of this Agreement dealing with confidentiality, representations or warranties, indemnities, limits on liability and any provisions set forth in the “Miscellaneous” section below shall survive termination of this Agreement.

Confidential information

Each party (the “disclosing party”) may disclose to the other party (the “receiving party”), Confidential Information during the course of performance under this Agreement. “Confidential Information” means any data, files, content, copy, materials and information which is not public and which is disclosed by the disclosing party or on such person’s behalf, to the receiving party or an affiliate or service provider of such party, either directly or indirectly, in writing (including electronically) or orally, and which a reasonable person should understand, based on the content or means of disclosure, to be confidential or proprietary. Your Content shall be considered your Confidential Information. Our Website content, Website look and feel, the Band Site skins and their look and feel, and all graphic and other elements of our Website and the Band Sites (excluding any which you uploaded to the Band Site), our business methods, pricing models and methodologies, and business processes, shall be considered our Confidential Information.

The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of the other party’s Confidential Information to those of its affiliates, employees, service providers or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of such Confidential Information; and (iii) use the other party’s Confidential Information only for the purposes for which it was disclosed, or as otherwise permitted herein or pursuant to instructions from the disclosing party.

The above restrictions will not apply to Confidential Information to the extent it (i) is, or through no fault of the recipient has become, generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions and if such third party was not subject to a duty of confidentiality when it received the information; (iii) was known to the receiving party prior to receipt from the disclosing party, if it received such information not subject to a duty of confidentiality; or (iv) was independently developed by the receiving party without breach of this Agreement or access to, reference or use of the Confidential Information of the other party.

The receiving party may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted by law, of such order and will assist the disclosing party in its efforts to contest or limit any required disclosure.

Data Security

It is your responsibility to comply with all applicable privacy and data protection laws that apply to you as part of your collection, use, handling, processing, sharing, disclosing and selling (if any) personal information of individuals (“personal data”) you connect with on your Band Site and other platforms, and when engaging in marketing activities, whether using our provided tools or not, and any other personal data which you collect, use, share, disclose, sell or otherwise process in connection with the Services. We will, and will encourage our service providers to, use commercially reasonable data security procedures and controls intended to protect Your Content from unauthorized use, loss, disclosure, theft or compromise. However, the security of your information and the personal data that you collect and process depends on you. You hereby agree to implement and maintain all data security procedures and controls as needed to comply with applicable privacy and data protection laws. You further represent and warrant that you will collect, process, share, disclose and sell all personal data solely in compliance with all applicable laws, and you understand that our Website does not cause you to be compliant with such laws. It is your responsibility to evaluate what laws apply to you, and the method of achieving compliance.

If there is any theft, loss, loss of control over, access or discovery by or disclosure to a third party, or other event that results in an unauthorized third party obtaining access to, viewing, copying, transferring, transmitting, displaying, preventing authorized access to, or coming to control of any of Your Content (each such event, a “Breach”), and if such Breach occurs as a result of any action or inaction of ours or our service providers or from our systems, devices or networks, then we will, at our own expense and solely to the extent we are legally permitted to do so: (a) give you notice of such Breach as quickly as is commercially feasible for us to do so after becoming aware of such a Breach; (b) give you reasonably available information pertaining to such Breach, and where and how it occurred; (c) give you available information pertaining to Your Content that was lost, stolen, accessed, discovered, rendered inaccessible or disclosed; (d) perform forensic investigations and audits as reasonably required to identify the root cause and reasons for the Breach; (e) reasonably mitigate the effects of the Breach as promptly as is commercially feasible; and (f) take all corrective actions necessary to prevent the Breach from re-occurring.

Representations and Warranties

Each party represents and warrants to the other that: (i) it is duly organized and validly existing in the state of its organization or formation and that it has full power and authority to enter into and perform its obligations pursuant to this Agreement in accordance with its terms; (ii) this Agreement represents a binding and enforceable obligation of such party.

You represent and warrant that (i) Your Content does not infringe or misappropriate any rights of third parties; (ii) you have all rights, consents, or other permission necessary to upload Your Content to the Band Site, and to collect, process, store, and use Your Content, including when using any communications or marketing tools made available through the Band Site (e.g., when sending newsletters, when communicating with your invitees to the Band Site in blogs or other areas of the Band Site, when sending them emails, when using analytics tools made available to you on the Band Site, when selling merchandise, when selling concert tickets, when disclosing information about concerts and events to users of the Band Site, etc.); (iii) you have obtained all consents, rights and permissions necessary to allow the Company and its service providers to access, use, host, collect, store, process and manipulate Your Content as required to provide the Services and pursuant to your instructions; and (iv) you are of legal age to execute contracts, and you have the right to bind all members of your musical/artistic group, to the extent you are not a solo artist.

YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE STATED HEREIN, WE DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.

EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES (INCLUDING YOUR BAND SITE), OUR CONTENT AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

Indemnification

Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from such party’s breach of its specific warranties herein.

We will defend, indemnify and hold you harmless from and against any action, claim, proceeding, law suit, demand, loss or expense (including reasonable attorney’s fees and legal costs and expenses) brought by a third party to the extent that the action is based upon a claim that our Services, Our Content or the Documentation (collectively, “Offerings”), or any portion thereof, infringes or misappropriates any U.S. or Canadian intellectual property rights of such third party. In addition, if the Offerings, or any part thereof, becomes, or in our reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either (i) procure for you the right to continue using the affected item, or (ii) modify the affected item so that it becomes non-infringing/not misappropriating. If none of the above options are reasonably available, we may terminate this Agreement or remove the feature or portion of the Offerings which is subject to the claim or possible claim.

Notwithstanding the foregoing, we shall have no liability for infringement or misappropriation under this section, if the alleged infringement or misappropriation arises directly from (i) the integration of the Offerings with other equipment or software that were not provided by us or reasonably foreseeable to be used in combination with or to be integrated with the Offerings, and if the infringement would not have occurred absent such integration; (ii) modifications made to the Offerings without our prior written consent; or (iii) use of the Offerings other than as contemplated hereunder, if such action would have been avoided but for such use, modification or combination. Further, notwithstanding anything to the contrary herein, we shall have no liability or indemnification obligation with respect to any claims subject to indemnity by you as set forth herein.

You agree to defend, indemnify and hold harmless us, our affiliates and service providers, and all officers, directors, members or employees of any of the foregoing, from and against any action, claim, proceeding, law suit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from (i) your use of ads, promotional tools, analytics services, and other features available on your Band Site; (ii) your activities in marketing or promotion of your goods or services to invitees on your Band Site, including with respect to all communications you initiate and receive through the use of your Band Site; (iii) any challenge or claim relating to one of your domain names; and/or (iv) Your Content.

The party seeking indemnity pursuant to this section will promptly notify the party indemnifying in writing of the claim, and will grant the indemnifying party sole control of the selection of counsel, defense, and settlement of the claim. The indemnifying party will pursue defense or prosecution of all claims in a diligent manner. The indemnified party hereunder agrees to provide the indemnifying party with reasonable assistance, information required for the defense and settlement of the claim; provided, however, that the indemnifying party may not settle a claim in a manner that is adverse to the indemnified party or if such settlement requires acknowledging liability or wrongdoing by the indemnified party without such indemnified party’s prior written consent.

Limitation on Liability

UNDER NO CIRCUMSTANCES WILL WE OR OUR AFFILIATES OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES, (II) PROPERTY DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, (III) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, OR (IV) ANY LOSS OR CORRUPTION OF DATA. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) AMOUNTS PAID BY YOU TO US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY APPLICABLE LAW.

Miscellaneous

Assignment. You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.

Subcontracting. We may subcontract any portion of the Services hereunder. You specifically consent to this arrangement. To the extent our subcontractors or service providers are subject to European data protection laws, we will bind them to contracts pursuant to which they will be required to comply with European laws applicable to the services they perform for us.

Notices. We may send you notices through the Band Site or via email. You must send us notices by contacting us via email at [email protected], or by sending us notices at the following address:

Bandzoogle.com
2045 W Grand Ave Ste B, PMB #92842
Chicago, IL
USA 60612-1577

Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions.

Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver.

Injunctive Relief. Notwithstanding anything else to the contrary herein, either party may seek injunctive in a court of competent jurisdiction without the posting of a bond.

Force Majeure. Neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.

Construction. Paragraph headings are for convenience and shall have no effect on interpretation.

Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of New York, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any dispute, controversy or claim arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively resolved by binding arbitration in the City of New York. The arbitration shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the rules of the American Arbitration Association. There shall be one arbitrator selected by agreement of the parties, or if the parties fail to agree, by the American Arbitration Association. The costs of arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless otherwise ordered by the arbitrator or agreed upon by the parties. The parties to this agreement further agree to abide by any award rendered by the arbitrator. Judgment on the award rendered by the arbitrator may otherwise be entered in any court having jurisdiction thereof.

Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a signatory to it, and no person not a signatory to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.

Independent Contractors. The parties are independent contractors, and this Agreement creates no relationship of principal and agent, partner, joint venture, employer-employee or other similar arrangement. Neither party is an agent of the other, and each party agrees that it will not represent itself to be an agent of the other party or attempt to create any obligation or make any representation on behalf of or in the name of the other party.

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