Terms of Use

These Terms of Use (the "Agreement," "Terms of Use" or "TOU") govern the use of the website TonarMusic.com (the "Website").  In this Agreement "You" means: 1) the individual person actually logging in and using the Website (defined below); and 2) the entity or business employer of the person actually logging in and using the Website, if applicable. These Terms of Use are effective upon Your agreement to them by registering and/or using the Website (the "Effective Date").  Capitalized terms not otherwise defined herein are defined in Exhibit A.

  1. Ownership Acknowledgment. All Intellectual Property in or relating to the Website and all modifications, adaptation, derivative works and enhancements thereto, are owned exclusively by the owner/publisher of the Website (the “Company”) and/or its licensors.  All rights not expressly granted herein are reserved to Company.
     
  2. Trademarks. You will not use, distribute or otherwise disseminate the Company’s Marks without the express written permission of Company. 

  3. Termination of Access. 

    3.1 Company may terminate this Agreement at any time upon the giving of written notice (which may be given solely electronically by email) to You in the event that You materially breach any of Your obligations under this Agreement.

    3.2 This Agreement shall automatically terminate without notice or a right to cure upon Your assignment for the benefit of creditors or any commencement by or against You for bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.

    3.3 Upon any termination of this Agreement You shall immediately cease all use of the Website, and all rights and licenses granted by Company hereunder to You shall immediately cease. You shall promptly notify all Authorized Parties of the termination of this Agreement.

    3.4 The provisions of Sections 1, 2, 3.3, and Sections 4 through and including 8 shall continue and survive in full force and effect to the extent so provided therein.

  4. Business Information.

    4.1 Privacy Policy. Company has developed a policy for the Website setting forth Company's procedures regarding its use and disclosure of Your data, Your confidential information and Business Information (collectively "Your Information"). Notwithstanding anything herein to the contrary, Company shall not be held liable for any improper use or disclosure of Your Information by You or any third party not under Company's direction or control.

    4.2 Use and Disclosure. Except as otherwise permitted or restricted by this Agreement and the Privacy Policy, Company may use or disclose Your Information for the following purposes: (i) to personalize the Website for You and to track and maintain your interaction with the Company; (ii) for proper management and administration of Company's business or to carry out its legal responsibilities; provided that such disclosure is required by law or Company obtains reasonable assurances from the person to whom disclosure is made that such information will be held confidentially and used or further disclosed only as required by law of for the purpose for which it was disclosed and such person notifies the Company of any instances of which he/she is aware in which the confidentiality of such information has been breached; and (iii) otherwise as permitted or required by applicable law.

  5. Warranties and Covenants.

    5.1 You. You covenant that You shall: (i) timely and fully perform its obligations under this Agreement; (ii) use the Website in compliance with all applicable federal and state laws, rules and regulations; (iii) not post on or provide for the Website any material that infringes the trademarks, copyrights or other intellectual property rights of third parties or that violates a right of privacy or constitutes defamation; (iv) comply with all Documentation provided by Company; (v) not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble or decompile the Website or any portion thereof; (vi) make no representations to Authorized Persons or third parties regarding the Website or Company's Websites that are not expressly authorized to be made in this Agreement; (vii) not use Company's Marks or any other Company Intellectual Property in any manner except as permitted under this Agreement; and (viii) cooperate with Company in its provision of the Website including providing such technical assistance and information as reasonably requested by Company. 

    5.2 Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, NEITHER COMPANY NOR YOU MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER ORAL OR WRITTEN, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING UNDER SUBTITLE 4 OF TITLE 22 OF THE MARYLAND ANNOTATED CODE COMMERCIAL LAW ARTICLE. THERE IS NO WARRANTY THAT THE WEBSITE OR ANY EFFORTS OR INFORMATION PROVIDED BY COMPANY WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY YOU OR THIRD PARTIES FOR OR VIA THE WEBSITE NOR FOR ANY INACCURATE RESULTS DUE TO COMPANY'S PROCESSING OF ANY SUCH DATA. COMPANY MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS OF DELIVERY OF THE WEBSITE TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED BY, YOU.
     
  6. LIMITATION OF LIABILITY.

    6.1 SUBJECT TO SECTION 6.3 BELOW: (i) YOUR SOLE REMEDY IN THE EVENT OF A CLAIM AGAINST COMPANY FOR BREACH OF THIS AGREEMENT SHALL BE FOR COMPANY TO REPAIR, REPLACE OR OTHERWISE CORRECT THE WEBSITE; AND (ii) IN NO EVENT WILL COMPANY, ITS SUBSIDIARIES AND/OR ASSOCIATED COMPANIES, BE LIABLE TO YOU UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE AGGREGATE AMOUNT OF PAYMENTS ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; AND (iii) IN NO EVENT WILL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE FOR ANY COMPENSATORY DAMAGES TO YOU, ANY OF YOUR OFFICERS, DIRECTORS, STOCKHOLDERS, SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY, UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION.

    6.2 SUBJECT TO SECTION 6.3 BELOW, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES OTHER THAN THOSE AWARDED UNDER THIS AGREEMENT), OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE WEBSITE OR ANY PORTION THEREOF, LOSS OF DATA, FALSE OR ERRONEOUS INFORMATION TRANSMITTED VIA THE INTERNET OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

    6.3 Exceptions. The limitations of liability set forth in Sections 6.1 and 6.3 above shall not apply: (i) where the party seeking the benefit of the limitation has acted with gross negligence or engaged in willful misconduct; or (ii) to claims that are actually covered by insurance, in which case such claims shall be limited to the actual insurance coverage less any deductible.  Notwithstanding any other provisions no liability of Company shall arise for failure to provide the Website if due to any cause beyond Company's reasonable control.

    6.4 Time for action.  No action arising out of this Agreement, regardless of form, may be brought by either party or any third party more than one (1) year after the date the cause of action accrued.
     

  7. Reservation of Rights. Company reserves all rights not expressly granted herein. Except as set forth in this Agreement, no express or implied license or right of any kind is granted to You regarding the Website, including but not limited to any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile or reverse engineer any software, create derivative works based on, or obtain possession of any source code of, or technological material relating to, the Website or any portion thereof. Company expressly reserves the right to terminate an Authorized Party's use of the Website for default of the Terms of Use without terminating this Agreement and without liability to You. Company, You, and the permitted successors or assigns, are the sole intended beneficiaries of this Agreement, there are no other intended beneficiaries of this Agreement, and no such unintended beneficiary or third party shall have the right to sue on or enforce this Agreement. The parties expressly agree that other Authorized Parties are not intended beneficiaries of this Agreement.

  8. Miscellaneous.

    8.1  Definitions. Capitalized terms used in this Agreement and the Exhibits shall have the meaning set forth in Exhibit A "Definitions," hereby adopted and incorporated herein.

    8.2  Applicable Law. This Agreement has been made, executed and delivered in Maryland. The parties mutually stipulate and agree that this Agreement is in all respects (including, but not limited to, all matters of interpretation, validity, performance and breach) to be exclusively construed, governed and enforced in accordance with the laws of Maryland and all applicable federal laws of the United States of America, as from time to time amended and in effect. The parties agree that the Uniform Commercial Code - Article 2 Sales, the United Nations Convention on Contracts for the International Sale of Goods, and the Electronic Signatures in Global and National Commerce Act shall not apply in any respect to this Agreement or the parties. In any litigation or arbitration between the parties, the prevailing party shall be entitled to, and the court or arbitrator(s) shall award, reimbursement of such party's reasonable attorneys' fees and costs.

    8.3  Relationship of the Parties. Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed to constitute a partnership or joint venture between the parties or be deemed to constitute one party as agent of the other, for any purpose whatever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with third parties, and each party shall take no action, directly or indirectly, which may prevent or hinder the other party from fulfilling its obligations to third parties.

    8.4  Relief. Each party acknowledges that any violation of the confidentiality, intellectual property of this Agreement will cause irreparable injury to the other party. Therefore, in addition to any other available remedies and damages, such other party shall be entitled to an injunction to restrain the violation thereof by the breaching party, its subsidiaries, agents, servants, employees and all personnel acting for or with it (without the requirement to post a bond or security). Nothing herein shall be construed as prohibiting a non-breaching party from pursuing any other available remedy for breach or threatened breach of this Agreement, including actual damages and reasonable attorney's fees.

    8.5  Assignment. Either party may assign this Agreement at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror or other entity that purchases or obtains substantially all of the assets or stock of such party, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement in the place of such party. Except as set forth above, You may not assign or delegate this Agreement without Company's prior written consent, which shall not be unreasonably withheld.

    8.6  Notice. All written communications between the parties shall be sent by First Class Mail or recognized courier, properly prepaid and sent to the addresses specified in this Agreement, or by electronic mail or facsimile. All such communications shall be deemed received upon the earlier of: (i) actual receipt or actual delivery to the address specified in accordance with this Agreement; (ii) three days after notice is deposited in a proper mail receptacle; or (iii) upon receipt by the transmitting party of confirmation or answer-back (if delivery is by facsimile or electronic mail). By written communication, either party may designate different contact information for purposes hereof.

    8.7  Entire Agreement; Amendments. This Agreement may be signed in counterparts, each of which shall be deemed an original and which shall together constitute the entire Agreement. This Agreement, all documents referenced herein and the Exhibits attached hereto represent the entire understanding between the parties with respect to the subject matter hereof and supersede all other prior written or oral agreements between the parties with respect to the subject matter hereof. Company may modify these terms of use by giving notice thereof on the Website near the login screen. Your use of the Website after a notice of amendment has been made shall be deemed to be an acceptance of the modifications, subject however to any restrictions under applicable law.   In the event of any direct conflict between the terms and conditions of this Agreement and any document referenced herein or any Exhibit, the terms of this Agreement shall control; provided however that the Privacy Policy shall govern in respect of Your personally identifiable information.

    8.8  Force Majeure. If either party's performance of this Agreement, other than the payment of monies, is prevented, restricted or interfered with by reason of Force Majeure, such party shall, upon giving prior written notice to the other party, be excused from performance to the extent of the Force Majeure, provided that the party so affected shall use its best efforts to avoid or remove the causes of Force Majeure, and shall continue performance hereunder with the utmost dispatch whenever the Force Majeure is removed. Notwithstanding the foregoing, if the Force Majeure continues for a period of one hundred eighty (180) calendar days or more, the unaffected party may, on written notice to the party affected, terminate this Agreement, and neither party shall have any further obligation to the other save for payment of all monies due and payable and for those provisions hereunder which survive termination of this Agreement.

    8.9  Severability. If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
     
    3.1 Company may terminate this Agreement at any time upon the giving of written notice (which may be given solely electronically by email) to You in the event that You materially breach any of Your obligations under this Agreement.

    3.2 This Agreement shall automatically terminate without notice or a right to cure upon Your assignment for the benefit of creditors or any commencement by or against You for bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.

    3.3 Upon any termination of this Agreement You shall immediately cease all use of the Website, and all rights and licenses granted by Company hereunder to You shall immediately cease. You shall promptly notify all Authorized Parties of the termination of this Agreement.

    3.4 The provisions of Sections 1, 2, 3.3, and Sections 4 through and including 8 shall continue and survive in full force and effect to the extent so provided therein.

EXHIBIT A To the Terms of Use  DEFINITIONS

 
 "Authorized Persons" shall mean all persons who access or use the Website with Your consent for purposes specifically related to Your internal business use of the Website.

 "Business Information" shall mean all information referring or relating to You and Your business, including data about your business or customers of your business.

 "Confidential Information" means in respect of Company, the Website, all software provided in connection with the Website (including both source and object code) and discussions between the parties concerning such software, all user names and passwords for accessing the Website, the Documentation, all amendments, enhancements and derivative works to such software and/or materials; and in respect of both parties, it also means the terms and conditions of this Agreement, and information that is of value to the Discloser and is treated as confidential. Confidential Information specifically shall not include Business Information, or any information established to be excluded from this definition under Section 4.2.

 "Discloser" refers to the party disclosing Confidential Information under this Agreement, whether such party is Company or You and whether such disclosure is directly or through Discloser's employees or agents.

 "Documentation" shall mean all information provided by Company describing the features, basic use and operation of the Website.

 "Force Majeure" shall mean nonperformance of this Agreement by a party resulting from war, revolution, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, regulation, ordinance, demand or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to above, which is beyond the reasonable control of the party affected.

 "Intellectual Property" shall mean patents, copyrights, trade secrets, trademarks and other proprietary rights recognized under applicable law.
 "Marks" shall collectively mean the trademarks, tradenames, trade dress, servicemarks or other identifying symbols of a party, whether or not registered.

 "Privacy Policy" shall mean the policy set forth in a hyperlink on the Website as amended from time to time.

 "Recipient" refers to the party receiving any Confidential Information under this Agreement, whether such party is Company or You and whether such disclosure is received directly or through Recipient's employees or agents.

 "Term" shall mean the length of time from the Effective Date through the effective date of a termination of this Agreement in accordance with its terms.

 "You" or "Your" shall collectively mean You and/or Authorized Persons.

 "Website" shall mean the worldwide web page(s) Company permits You to access and use.