Terms And Conditions
Welcome to Ascoltando.org, the website and online service of the Ascoltando Inc, (US) (“Ascoltando” “we,” or “us”).
1. Use of Our Service Our Service in a Snapshot.
Ascoltando operates an online music coaching platform and media licensing service that empowers our users to learn and collaborate in the development of their music careers. Eligibility. You may use the Service only if you can form a binding contract with Ascoltando, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service may not be available to any Users previously removed from the Service by the Online Music Guild.
By using the Service, you represent and warrant that you have the full right, power and authority to enter into this Agreement and to fully perform all of your obligations hereunder. You further represent and warrant that you are under no legal disability or contractual restriction that prevents you from entering into this Agreement. License to use the Ascoltando Service. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service and as permitted by the features of the Service. Ascoltando reserves all rights not expressly granted herein in the Service and the Ascoltando Content (as defined below). Ascoltando may terminate this license at any time for any reason or no reason. Additional terms may apply for any content that you download from or upload to the Service. Any such additional terms will be made available to you prior to initiating any applicable uploads or downloads.
2. Ascoltando Accounts
Your Ascoltando account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open an Ascoltando account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
By connecting to Ascoltando with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. In order to be accepted as a Contributor (as defined below), we may require you to submit valid photo identification. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You may not allow any other party to access or use the Service with your unique username, password, or other security code. You must notify Ascoltando immediately of any breach of security or unauthorized use of your account.
Ascoltando will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the Service by changing the settings in your account. By providing Ascoltando your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
3. Service Rules
You agree not to engage in any of the following prohibited activities:
(i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
(ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Ascoltando servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser;
(iii) transmitting spam, chain letters, or other unsolicited email;
(iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
(v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
(vi) uploading invalid data, viruses, worms, or other software agents through the Service;
(vii) collecting or harvesting any personally identifiable information, including account names, from the Service;
(viii) using the Service for any commercial solicitation purposes;
(ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
(x) interfering with the proper working of the Service;
(xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
(xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
(xiii) using any Ascoltando Content (as defined below), including any Ascoltando trademarks, in any manner that might tarnish, disparage, or reflect adversely on such Ascoltando Content;
(xiv) using any Ascoltando trademark or any variant thereof including misspellings as a domain name or as part of a domain name, as a meta-tag, keyword, or any other type of programming code or data;
(xv) adopting or using, without our prior written consent, any word or mark which is similar to or likely to be confused with Ascoltando trademarks;
(xvi) copying, imitating or using, in whole or in part, the look and feel of the Service (including but not limited to all page headers, custom graphics, button icons, and scripts) without the prior written consent of Ascoltando;
(xvii) using any Ascoltando Content to link to the Ascoltando website without the prior written consent of Ascoltando;
(xviii) framing or hot-linking to the Service or any content other than your own without the prior written consent of Ascoltando.
Accessing the audiovisual content available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Ascoltando Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason.
Upon termination for any reason or no reason, you continue to be bound by this Agreement. If your account is terminated for any reason, you must obtain written authorization from Ascoltando prior to establishing another account. If you attempt to establish another account without obtaining such authorization, Ascoltando may permanently ban you from the Service. You may not have more than one active account at any time without the written consent of Ascoltando in each instance. You are solely responsible for your interactions with other Ascoltando Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Ascoltando shall have no liability for your interactions with other Users, or for any User’s action or inaction.
4. User Content
Some areas of the Service allow Users to submit and publish content such as profile information, comments, questions, photographs, testimonials, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service without compensation “User Content”). You retain ownership of your User Content, and you understand that you grant Ascoltando the right to utilize the User Content in any way we desire.
4.2 Uploading User Content to the Online Music Guild
You agree not to submit User Content that:
(i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
(ii) may create a risk of any other loss or damage to any person or property;
(iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
(iv) may constitute or contribute to a crime or tort;
(v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
(vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
(vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(viii) contains any information or content that you know is not correct and current.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy or publicity. Ascoltando reserves the right, but is not obligated, to reject and/or remove any User Content that Ascoltando believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization. Further, you understand that if you contribute User Content under a Brand, the Brand Owner will own—and be entirely responsible for—all such User Content. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
a. Your User Content and Online Music Guild’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy and publicity rights.
b. Ascoltando may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
c. There is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect any of your User Content or which might in any way impair the rights granted by you hereunder.
d. If your User Content consists in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools and the like that are included in design programs, by uploading any such User Content to Online Music Guild, you represent and warrant that the end user license agreement, terms of service or the equivalent license agreed to by you allows you to incorporate such elements in any part of whole of the User Content created by you, and to license such User Content to Ascoltando for the purposes set forth herein.
e. Your User Content is neither obscene, defamatory, nor otherwise objectionable.
f. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
g. You will not transmit unsolicited emails or engage in spamming to publicize or promote your relationship with Online Music Guild.
h. You will not engage in pay per click advertising using keywords which compete with Online Music Guild’s own campaigns in order to promote your relationship with Ascoltando nor will you use or engage a third party on your behalf to use Ascoltando in any domain name.
Upon making or learning of any claim that is inconsistent with any of the representations or warranties made by you, Ascoltando shall send you written notice of such claim, using the email address provided by you to the Online Music Guild, specifying the details of the claim as then known to the Online Music Guild. Pending the determination of such claim, Ascoltando may withhold from royalties and/or other compensation due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by the Online Music Guild. Ascoltando takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Ascoltando shall not be liable for any damages you allege to incur as a result of User Content.
5. User Content License Grant
By publishing any information on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant to Ascoltando a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and the Online Music Guild’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
6. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, User Content belonging to other Users, (the “Ascoltando Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Ascoltando and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Ascoltando Content. Use of the Ascoltando Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Ascoltando under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Ascoltando does not waive any rights to use similar or related ideas previously known to the Online Music Guild, or developed by its employees, or obtained from sources other than you.
8. Paid Services
8.1 Billing Policies. Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment listed on the Service, which we may update from time to time. Ascoltando may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion.
8.2 No Refunds. You may cancel your Ascoltando account at any time; however, there are no refunds for cancellation. In the event that Ascoltando suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any credits, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.
8.3 Payment Information; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, licenses, royalties, transactions, or other monetary transaction interactions.
9. Ascoltando Property
Certain aspects of the service may allow you to obtain certain reputational or status indicators (“Ascoltando Property”). You understand and agree that regardless of terminology used, the Ascoltando Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Ascoltando’s sole discretion. Ascoltando Property is not redeemable for any sum of money or monetary value from Ascoltando at any time. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Ascoltando on the Ascoltando servers, including without limitation any data representing or embodying any or all of your Ascoltando Property.
You agree that Ascoltando has the absolute right to manage, regulate, control, modify and/or eliminate Ascoltando Property as it sees fit in its sole discretion, in any general or specific case, and that Ascoltando will have no liability to you based on its exercise of such right. All data on Ascoltando’s servers are subject to deletion, alteration or transfer. Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, account history and account content residing on Ascoltando’s servers, may be deleted, altered, moved or transferred at any time for any reason in Ascoltando’s sole discretion, with or without notice and with no liability of any kind. Ascoltando does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on Ascoltando’s servers.
Ascoltando cares about the integrity and security of your personal information and we have in place numerous systems to maintain that information safe. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
12. DMCA Notice
Since we respect artist and content owner rights, it is Ascoltando’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Ascoltando’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing: 1
. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Ascoltando to contact you, such as your address, telephone number, and, e-mail address;
5. 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 law; and
6. A statement made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
13. Third-Party Links
You agree to defend, indemnify and hold harmless Ascoltando and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity, or Intellectual Property Rights; (iv) your violation of any applicable law, rule, or regulation; (v) any claim or damages that arise as a result of any of your User Content, or any content that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password, or other appropriate security code.
15. No Warranty
The service is provided on an “as is” and “as available” basis. Use of the service is at your own risk. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, Ascoltando, its subsidiaries, and its licensors do not warrant that the content, including without limitation User Content is accurate, reliable or correct; that the service will meet your requirements; that the service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the service is free of viruses or other harmful components.
Any content downloaded or otherwise obtained through the use of the service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the service. Ascoltando does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through Ascoltando service or any hyperlinked website or service, and Ascoltando will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
16. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall the Online Music Guild, its affiliates, agents, directors, employees, suppliers or licensors be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, this service, including without limitation, your submission of User Content. Under no circumstances will Ascoltando be responsible for any damage, loss or injury resulting from hacking; tampering or other unauthorized access or use of the service or your account or the information contained therein. To the maximum extent permitted by applicable law, Ascoltando assumes no liability or responsibility for any
(i) errors, mistakes, or inaccuracies of content;
(ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service;
(iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein;
(iv) any interruption or cessation of transmission to or from the service;
(v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party;
(vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the service;
(vii) user content or the defamatory, offensive, or illegal conduct of any third party.
In no event shall the Online Music Guild, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Ascoltando here-under or $100.00, whichever is greater. No action, regardless of form or nature, arising out of this agreement may be brought by or on behalf of you more than one (1) year after the cause of action first arose. Notwithstanding anything to the contrary contained herein, Ascoltando shall not be liable for any damages, costs or losses arising as a result of modifications made to User Content or other content, any additions or combinations of User Content with other content, or the context in which the User Content or other content is used by you. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Ascoltando has been advised of the possibility of such damage.
The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. Some states do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights, which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law. The Service is controlled and operated from its facilities in the United States.
Ascoltando makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
17. Governing Law
You agree that: (i) the Service shall be deemed solely based in Idaho; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over the Online Music Guild, either specific or general, in jurisdictions other than Idaho. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Latah County, Idaho for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
The arbitration will be conducted in Santa Clara County, California, unless you and Ascoltando agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and Ascoltando are each waiving the right to a trial by jury or to participate in a class action.
This Agreement, and any rights and licenses granted here-under, may not be transferred or assigned by you, but may be assigned by Ascoltando without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
19.2 Notification Procedures and Changes to the Agreement
19.3 Entire Agreement/Severability
19.4 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and the Online Music Guild’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.