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TERMS & CONDITIONS
THIS WEB PAGE IS A LEGAL DOCUMENT (“AGREEMENT”) BETWEEN YOU AND VOCAL DOWNLOADS. THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE VOCAL DOWNLOADS WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE VOCAL DOWNLOADS WEB SITE. BY USING AND ACCESSING THE VOCAL DOWNLOADS WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS AND USE THE VOCAL DOWNLOADS WEB SITE. VOCAL DOWNLOADS MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY UPDATING THIS AGREEMENT. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.

 

TERMS AND CONDITIONS

These Terms and Conditions (“Agreement”) are made as of the Effective Date by and between Vocal Downloads, a Vocal Downloads with offices located at P.O. Box 360354, Milpitas, CA 95035.

WITNESSEH

    WHEREAS, Vocal Downloads has developed and owns the Vocal Downloads Web Site (as defined hereinafter) for use and access by You via the Internet; and
    WHEREAS, You desire to access and use the Vocal Downloads Web Site in accordance with the terms and provisions of this Agreement;
    NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, You and Vocal Downloads hereby agree as follows:

ARTICLE I: RECITALS AND DEFINITIONS

Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.

Section 1.02 -- Definitions: The following definitions shall apply:

(1) Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.

(2) Vocal Downloads Web Site: The term “Vocal Downloads Web Site” shall mean the Web Site referred to as the Vocal Downloads Web Site, which is located on the Internet at http://www.vocaldownloads.com, including any and all Vocal Downloads IP used, incorporated, stored or accessible therein, as implemented on the Vocal Downloads System and made accessible to You through the Internet using Your email address and Your Password.

(3) Effective Date: The term “Effective Date” shall mean the date You create your account or profile on the Vocal Downloads Web Site.

(4) Vocal Downloads Marks: The term “Vocal Downloads Marks” shall mean the trademarks, trade names, service marks and trade dress of Vocal Downloads.

(5) Vocal Downloads System: The term “Vocal Downloads System” shall mean the computer systems and communication equipment used for hosting the Vocal Downloads Web Site and providing You with access to the Vocal Downloads Web Site.

(6) Vocal Downloads IP: The term “Vocal Downloads IP” shall mean any and all IP developed by or for Vocal Downloads.

(7) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.

(8) Licensed Content: The term “Licensed Content” shall mean third party IP incorporated in whole or part into the Vocal Downloads Web Site.

(9) Link: The term “Link” shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or IP.

(10) Password: The term “Password” shall mean the password that you select for accessing the Vocal Downloads Web Site as may be modified from time to time as provided hereunder.

(11) Policy Statement: The term “Policy Statement” shall mean those certain written statements of policies (in printed or electronic form) concerning access to the Vocal Downloads Web Site as may be adopted by Vocal Downloads and as modified by Vocal Downloads from time-to-time.

(12) You: The term “You” shall mean you, the user of the Vocal Downloads Web Site (whether an individual or legal entity).

(13) IP: The term “IP” is an abbreviation for “intellectual property” and shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.

(14) Term: The term “Term” shall mean a period of time starting on the Effective Date and ending on the date either party cancels Your Member Account or rights to use the Vocal Downloads Web Site as provided hereunder.

(15) Unauthorized Access: The term “Unauthorized Access” shall mean any access to Vocal Downloads Web Site except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Vocal Downloads Web Site using the Password on Your behalf in accordance with this Agreement.

(16) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Vocal Downloads Web Site except for You and Your employees and agents authorized by You to access the Vocal Downloads Web Site for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Vocal Downloads Web Site during the Term using the Password on Your behalf in accordance with this Agreement.

(17) Web Site: The term “Web Site” shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.

ARTICLE II: SCOPE OF USE

Section 2.01 -- Access: Vocal Downloads hereby grants You a non-exclusive, non-transferable and revocable license to access the Vocal Downloads Web Site, during the Term, solely for viewing, browsing, retrieving, uploading and posting information, and ordering products on or through the Vocal Downloads Web Site, subject to the terms and provisions of this Agreement.

Section 2.02 -- Password: You hereby accept responsibility for, and shall be liable for, all access to the Vocal Downloads Web Site in connection with the Password. You shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Vocal Downloads.

Section 2.03 -- Unauthorized Access: You shall prevent Unauthorized Users from accessing the Vocal Downloads Web Site. You shall prevent Unauthorized Access to the Vocal Downloads Web Site.

Section 2.04 -- Cancellation: Vocal Downloads may cancel the Password, for convenience and in the exclusive discretion of Vocal Downloads, upon providing written notice of such cancellation to You in accordance with Section 5.06 of this Agreement. You may cancel the Password, for your convenience and in your exclusive discretion, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.07 of this Agreement. Upon cancellation of the Password, Subscriber shall immediately cease and desist any and all access to and attempts to access the Vocal Downloads Web Site.

ARTICLE III: INTELLECTUAL PROPERTY

Section 3.01 -- Ownership and Title: Title to the Vocal Downloads Web Site (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Vocal Downloads.

Section 3.02 -- Unauthorized Use: You shall not copy or download the Vocal Downloads Web Site without the prior written consent of Vocal Downloads. You shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the Vocal Downloads Web Site without the prior written consent of Vocal Downloads.

Section 3.03 -- Trademarks: Vocal Downloads shall retain all rights, title and ownership interests in the Vocal Downloads Marks and goodwill associated therewith. You acknowledge that, excepting the Vocal Downloads Marks, all other product, service and company names mentioned in the Vocal Downloads Web Site may be trademarks of their respective owners.

Section 3.04 -- Proprietary Information: You shall not disclose Vocal Downloads IP except as otherwise permitted under this Agreement. You hereby acknowledge and agree that the Vocal Downloads IP derives independent economic value (actual or potential) from not being generally available to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.

Section 3.05 -- No Contest: You shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, and service marks (as applicable) of Vocal Downloads in connection with the Vocal Downloads Web Site.

Section 3.06 -- Your Submissions: Any IP (except the Password and ordering information) uploaded, posted or submitted by You on the Vocal Downloads Web Site shall be deemed non-confidential. You hereby grant Vocal Downloads an irrevocable, worldwide, perpetual, nonexclusive license to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such IP, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. You represent and warrant that You possesses all necessary rights, title and interests to rightfully grant Vocal Downloads the foregoing license, free and clear of any encumbrances, third party interests and restrictions. You also represent and warrant that all information provided by You in connection with the Vocal Downloads Web Site and this Agreement is true, complete and accurate.

ARTICLE IV: WARRANTY AND INDEMNIFICATION

Section 4.01 -- Express Warranties: You hereby acknowledge and agree that Vocal Downloads (including officers, employees, agents, directors and independent contractors of Vocal Downloads has not made or granted to You any express warranties concerning the Vocal Downloads Web Site or any products and services offered through the Vocal Downloads Web Site. You hereby acknowledge that the Vocal Downloads Web Site does not constitute grant of an express warranty concerning any products and services offered through the Vocal Downloads Web Site and You hereby waive any and all claims of warranty based on the Vocal Downloads Web Site.

SECTION 4.02 -- WARRANTY LIMITATION: THE VOCAL DOWNLOADS WEB SITE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. VOCAL DOWNLOADS, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES BY VOCAL DOWNLOADS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE VOCAL DOWNLOADS WEB SITE AND PRODUCTS AND SERVICES OFFERED THROUGH THE VOCAL DOWNLOADS WEB SITE. VOCAL DOWNLOADS DOES NOT WARRANT AND YOU HEREBY WAIVE ANY WARRANTY THAT USE OF OR ACCESS TO THE VOCAL DOWNLOADS WEB SITEBY YOU WILL BE UNINTERRUPTED OR ERROR FREE. VOCAL DOWNLOADS DOES NOT MAKE ANY WARRANTY AND YOU HEREBY WAIVE ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE VOCAL DOWNLOADS WEB SITE OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE VOCAL DOWNLOADS WEB SITE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT USE OF THE INTERNET AND VOCAL DOWNLOADS WEB SITE SHALL BE AT YOUR SOLE AND EXCLUSIVE RISK AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE VOCAL DOWNLOADS WEB SITE.

Section 4.03 -- Inaccuracies: You hereby acknowledge that the Vocal Downloads Web Site may contain errors, inaccuracies and omissions. You shall assume any and all risk of loss, harm or damage associated with Your access to and use of the Vocal Downloads Web Site.

SECTION 4.04 -- LIMITATION OF LIABILITY: VOCAL DOWNLOADS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE VOCAL DOWNLOADS WEB SITE; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY YOU; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE VOCAL DOWNLOADS WEB SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER VOCAL DOWNLOADS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.

SECTION 4.05 -- LIMITATION OF DAMAGES: YOUR SOLE REMEDY FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE VOCAL DOWNLOADS WEB SITE, AND PRODUCTS AND SERVICES OFFERED THROUGH THE VOCAL DOWNLOADS WEB SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO MODIFICATION OF THE VOCAL DOWNLOADS WEB SITE, AS DETERMINED BY VOCAL DOWNLOADS, AND THE AMOUNT OF MONEY PAID BY YOU TO VOCAL DOWNLOADS IN THE PAST CALENDAR YEAR.

Section 4.06 -- Indemnification: You shall release, defend, indemnify and hold harmless Vocal Downloads (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by You of the Internet, Vocal Downloads Web Site, or products or services offered through the Vocal Downloads Web Site (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the Vocal Downloads Web Site; (iii) Your negligence or any tortious acts (or failures to act) by You; (iv) products or services offered through the Vocal Downloads Web Site; and (v) any breach by You of Your obligations under this Agreement.

Section 4.07 -- Links: You hereby acknowledge that the Vocal Downloads Web Site may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to You and do not constitute an endorsement by Vocal Downloads of such Web Sites and the third party content therein.

ARTICLE V: MISCELLANEOUS

Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between Vocal Downloads and You relating to the subject matter hereof.

Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by Vocal Downloads and modifications made to this Agreement by Vocal Downloads, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Vocal Downloads.

Section 5.03 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.

Section 5.04 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.

Section 5.05 -- Governing Law: This Agreement shall be governed by the laws of the state of California, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be in the courts of San Jose, California.

Section 5.06 -- Notice to You: All notices to You shall be in writing. Notices to You shall be deemed delivered when posted conspicuously on the Vocal Downloads Web Site or when delivered to You electronically, by first class mail, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to You shall be deemed given when dispatched. Notices posted conspicuously on the Vocal Downloads Web Site or delivered to You electronically (including, without limitation, electronic mail) shall be deemed written notices.

Section 5.07 -- Notice to Vocal Downloads: All notices to Vocal Downloads shall be in writing. Notices to Vocal Downloads shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for Vocal Downloads. Notices to Vocal Downloads shall be deemed given on the date notice is received by Vocal Downloads (as evidenced in the case of Certified or Registered Mail by Return Receipt).

Vocal Downloads Web Site
P.O. Box 360654
Milpitas, CA 95036

Section 5.08 -- Remedies: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Vocal Downloads. In addition to remedies at law and other rights which may be available, Vocal Downloads shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by You.

Section 5.9 -- Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.

Section 5.10 -- Survival: The terms and provisions of Sections 2.03 and 2.04 and Articles I, III, IV and V of this Agreement shall survive cancellation of this Agreement.

Section 5.11 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in San Jose, California. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. One Qualified Arbitrator shall be selected by the parties in accordance with the Arbitration Rules of the American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure.

Section 5.12 -- Litigation Expense: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).

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