1. Your Acceptance
A. By using and/or visiting this website (collectively, including all content and
functionality available through the InstantEncore.com domain name, the "InstantEncore
Website", or "Website"), you signify your agreement to (1) these terms and conditions
(the "Terms of Service"), (2) InstantEncore's privacy notice, found at
http://www.InstantEncore.com/privacy and incorporated here by reference,
and (3) InstantEncore's Community Guidelines
also incorporated here by reference. If you do not agree to any of these terms,
the InstantEncore privacy notice, or the Community Guidelines, please do not use
the InstantEncore Website.
B. Although we may attempt to notify you when major changes are made to these Terms
of Service, you should periodically review the most up-to-date version
http://www.InstantEncore.com/terms). InstantEncore may, in its sole discretion,
modify or revise these Terms of Service and policies at any time, and you agree
to be bound by such modifications or revisions. Nothing in this Agreement shall
be deemed to confer any third-party rights or benefits.
2. InstantEncore Website
A. These Terms of Service apply to all Partners and Users of the InstantEncore Website,
including Partners and Users who are also contributors of content, information,
and other materials or services on the Website. The InstantEncore Website includes
all aspects of InstantEncore, including but not limited to all products, software
and services offered via the website.
B. The InstantEncore Website may contain links to third party websites that are
not owned or controlled by InstantEncore. InstantEncore has no control over, and
assumes no responsibility for, the content, privacy policies, or practices of any
third party websites. In addition, InstantEncore will not and cannot censor or edit
the content of any third-party site. By using the Website, you expressly relieve
InstantEncore from any and all liability arising from your use of any third-party
C. Accordingly, we encourage you to be aware when you leave the InstantEncore Website
3. InstantEncore Accounts
A. In order to access some features of the Website, you will have to create an InstantEncore
account. There are 2 classes of InstantEncore accounts, Partner and User, with different
capabilities, privileges and responsibilities which are described below. You may
never use another's account without permission. When creating your account, you
must provide accurate and complete information. You are solely responsible for the
activity that occurs on your account, and you must keep your account password secure.
You must notify InstantEncore immediately of any breach of security or unauthorized
use of your account.
B. Partner accounts: These are only available to approved artists and performing
arts organizations. These accounts have access to the Partner Control Panel which
allows the Partner to upload Audio and Audio-Video Content, to set up and administer
specialized partner profile pages and to define the modes and conditions of User
access to Partner Submissions. Partner submissions of audio and/or audio/video content
can be made available according to the following conditions under the control of
1. Sample: In this case a User is able to play to a 60 second version of an item
of Audio or Audio-Video Content, uploaded by the Partner, at no charge to the User.
The user will be presented with a button labeled “Sample” adjacent to the description
of the Content. The Content will be made available to the User only for Streaming
(as defined below). There is no charge to the User, no remuneration to the Partner
and the Content is available to all Users without any discrimination of any kind.
The time and duration of User access to the Content is managed by the Partner through
the Partner Control Panel.
2. Full Stream: In this case the User is able to play the complete version of an
item of Audio or Audio-Video Content, uploaded by the Partner, at no charge to the
User. The User will be presented with a button labeled “Listen” adjacent to the
description of the Content. The Content will be made available to the User only
for Streaming (as defined below). There is no charge to the User, no remuneration
to the Partner and the Content is available to all Users without any discrimination
of any kind. The time and duration of User access to the Content is managed by the
Partner through the Partner Control Panel.
3. Download: In this case the User is able to Download (as defined below) the complete
version of the Audio and/or Audio-Video Content, uploaded by the Partner. The Partner
can define the conditions under which the user can Download the Content. Content
authorized for Download can also be authorized for Sample or Full Streaming. Download
a. Free: Any User can Download the Content at no cost:
b. Restricted by Authorized Download Code: The Partner can acquire one or more unique
Authorized Download Codes from InstantEncore and associate specific codes with specific
Content. The Users must enter the Authorized Download Code before they are allowed
to Download the Content. The Authorized Download Codes can be distributed on InstantEncore
cards which are provided to specific Users, in emails, in programs or by any other
means which is appropriate to the Partner.
c. For Payment: The Partner can specify a price to be paid by the User for the right
to Download the Content. The price will be displayed adjacent to the description
of the Content. In such case, InstantEncore will collect the payment from the User
on behalf of the Partner. InstantEncore will retain 30% of the price paid by the
User as a fee for enabling and processing the payment transaction. 70% of the price
paid by the User will be forwarded to the Partner. Payments of accrued sales will
be made to the Partner once per Quarter but only after the total amount owed to
the Partner reaches or exceeds $10.00 for that period.
d. With a Donation: The Partner can invite a User to make a voluntary donation prior
to Downloading free Content. In this case, a specific appeal, designed by the Partner,
will be presented to the User, inviting him to make a voluntary donation before
he is directed to Download the content. InstantEncore will process the donation
transaction on the behalf of the Partner. InstantEncore will retain 9% of the amount
donated as a fee for enabling and processing the financial transaction. The remainder
of the donation amount will be forwarded to the Partner. Payments of accrued donations
will be made to the Partner once per Quarter but only after the total amount owed
to the Partner reaches or exceeds $10.00 for that period. In order to qualify for
this service the Partner must submit proof that they are a qualified 501C3 organization.
The responsibility of maintaining the necessary records of donations and providing
appropriate acknowledgements to the donor it the sole responsibility of the Partner.
Partners receiving payment or donations are responsible for providing and maintaining
their current address and payee information to InstantEncore through the InstantEncore
Partner Control Panel in order to receive payments from InstantEncore. Partners
can invite voluntary donations from Users at any time by making a specific appeal,
designed by the Partner, to be presented by the User in the “Support Us” area of
their Partner Boutique on InstantEncore. The payment structure remains as outlined
above in Section 3.B.3.d. Although InstantEncore will not be liable for your losses
caused by any unauthorized use of your account; you may be liable for the losses
of InstantEncore or others due to such unauthorized use.
C. User Accounts: User accounts have access to all InstantEncore features except
for the above.
4. General Use of the Website—Permissions and Restrictions
InstantEncore hereby grants you permission to access and use the Website as set
forth in these Terms of Service, provided that:
A. You agree not to distribute in any medium any part of the Website, including
but not limited to Partner and User Submissions (defined below), without InstantEncore's
prior written authorization.
B. You agree not to alter or modify any part of the Website.
C. You agree not to access Partner and User Submissions (defined below) or InstantEncore
Content through any technology or means other than the playback/download pages of
the Website itself, the InstantEncore Radio Player, or other explicitly authorized
means InstantEncore may designate.
D. You agree not to use the Website, including the InstantEncore Radio Player for
any commercial use, without the prior written authorization of InstantEncore. Prohibited
commercial uses include any of the following actions taken without InstantEncore's
- Sale of access to the Website or its related services (such as the Radio Player)
on another website;
- Use of the Website or its related services (such as the Radio Player), for the primary
purpose of gaining advertising or subscription revenue;
- The sale of advertising, on the InstantEncore website or any third-party website,
targeted to the content of specific Partner and User Submissions or InstantEncore
- Any use of the Website or its related services (such as the Radio player) that InstantEncore
finds, in its sole discretion, to use InstantEncore's resources or Partner and User
Submissions with the effect of competing with or displacing the market for InstantEncore,
InstantEncore content, or its Partner and User Submissions.
E. Prohibited commercial uses do not include:
- Uploading original content to InstantEncore to promote your business or artistic
- Using the Radio Player to play InstantEncore audio on an ad-enabled blog or website,
provided the primary purpose of using the Radio Player is not to gain advertising
revenue or compete with InstantEncore;
- Any use that InstantEncore expressly authorizes in writing.
F. If you use the InstantEncore Radio Player on your website, you must include a
prominent link back to the InstantEncore website on the pages containing the Radio
Player and you may not modify, build upon, or block any portion of the Radio Player
in any way
G. If you use the InstantEncore Radio Player on your website, you agree that the
track will identify InstantEncore.com. A default track is provided by InstantEncore.
H. If you use the InstantEncore Partner Control Panel, you agree that it may automatically
install updates from time to time from InstantEncore. These updates are designed
to improve, enhance and further develop the Partner Control Panel and may take the
form of bug fixes, enhanced functions, new software modules and completely new versions.
I. You agree not to use or launch any automated system, including without limitation,
"robots," "spiders," or "offline readers," that accesses the Website in a manner
that sends more request messages to the InstantEncore servers in a given period
of time than a human can reasonably produce in the same period by using a conventional
on-line web browser. Notwithstanding the foregoing, InstantEncore grants the operators
of public search engines permission to use spiders to copy materials from the site
for the sole purpose of and solely to the extent necessary for creating publicly
available searchable indices of the materials, but not caches or archives of such
materials. InstantEncore reserves the right to revoke these exceptions either generally
or in specific cases. You agree not to collect or harvest any personally identifiable
information, including account names, from the Website, nor to use the communication
systems provided by the Website (e.g. comments, email) for any commercial solicitation
purposes. You agree not to solicit, for commercial purposes, any Partners and/or
users of the Website with respect to their use or submissions.
J. In your use of the website, you will otherwise comply with the terms and conditions
of these Terms of Service, InstantEncore Community Guidelines, and all applicable
local, national, and international laws and regulations.
K. InstantEncore reserves the right to discontinue any aspect of the InstantEncore
Website at any time.
5. Your Use of Content on the Site
In addition to the general restrictions above, the following restrictions and conditions
apply specifically to your use of content on the InstantEncore Website.
A. The content on the InstantEncore Website, except all Partner and User Submissions
(as defined below), including without limitation, the text, software, scripts, graphics,
photos, sounds, music, videos, interactive features and the like ("Content") and
the trademarks, service marks and logos contained therein ("Marks"), are owned by
or licensed to InstantEncore, subject to copyright and other intellectual property
rights under the law. Content on the Website is provided to you AS IS for your information
and personal use only and may not be downloaded, copied, reproduced, distributed,
transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any
other purposes whatsoever without the prior written consent of the respective owners.
InstantEncore reserves all rights not expressly granted in and to the Website and
B. You may access Partner and User Submissions solely:
- For your information and personal use;
- As intended through the normal functionality of the InstantEncore Service
- For Streaming; and
- For Downloading only when such downloading is explicitly enabled by the InstantEncore
website and when any conditions required of the downloader by the InstantEncore
Website are first fulfilled
"Streaming" means a contemporaneous digital transmission of an audio or audiovisual
work via the Internet from the InstantEncore 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. Accessing
Partner and User Submissions or other content or works from the InstantEncore website
for any purpose or in any manner other than Streaming is expressly prohibited unless
explicitly approved supported by the InstantEncore website. Partner and User Submissions
are made available "as is."
“Downloading” means making a copy via the internet of an audio, audiovisual or other
content or works from the InstantEncore Service and keeping said copy on the user’s
device. Downloading is explicitly prohibited unless the Partner and/or User submission
or other content or work being downloaded is explicitly identified as available
for download and unless the Partner or User has complied with any and all conditions
called for by the InstantEncore website for downloading that item, including providing
a download code or payment as appropriate.
C. User Comments are made available to you for your information and personal use
solely as intended through the normal functionality of the InstantEncore Service.
User Comments are made available "as is", and may not be used, copied, reproduced,
distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise
exploited in any manner not intended by the normal functionality of the InstantEncore
Service or otherwise as prohibited under this Agreement.
D. You may access InstantEncore Content, Partner and User Submissions and other
content only as permitted under this Agreement. InstantEncore reserves all rights
not expressly granted in and to the InstantEncore Content and the InstantEncore
E. You agree to not engage in the use, copying, or distribution of any of the Content
other than expressly permitted herein, including any use, copying, or distribution
of Partner and User Submissions of third parties obtained through the Website for
any commercial purposes.
F. You agree not to circumvent, disable or otherwise interfere with security-related
features of the InstantEncore Website or features that prevent or restrict use or
copying of any Content or enforce limitations on use of the InstantEncore Website
or the Content therein.
G. You understand that when using the InstantEncore Website, you will be exposed
to Partner and User Submissions from a variety of sources, and that InstantEncore
is not responsible for the accuracy, usefulness, safety, or intellectual property
rights of or relating to such Partner and User Submissions. You further understand
and acknowledge that you may be exposed to Partner and User Submissions that are
inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby
do waive, any legal or equitable rights or remedies you have or may have against
InstantEncore with respect thereto, and agree to indemnify and hold InstantEncore,
its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent
allowed by law regarding all matters related to your use of the site.
6. Partner and User Submissions, Capabilities, Responsibilities and Conduct
A. As an InstantEncore Partner or User account holder you may submit Audio and Audio-Video
Content and textual and image content ("User Comments"). User Audio and Audio-Video
Content and User Comments are collectively referred to as "Partner and User Submissions."
You understand that whether or not such Partner and User Submissions are published,
InstantEncore does not guarantee any confidentiality with respect to any Partner
and User Submissions.
B. You shall be solely responsible for your own Partner and User Submissions and
the consequences of posting or publishing them. In connection with Partner and User
Submissions, you affirm, represent, and/or warrant that: you own or have the necessary
licenses, rights, consents, and permissions to use and authorize InstantEncore to
use all patent, trademark, trade secret, copyright or other proprietary rights in
and to any and all Partner and User Submissions to enable inclusion and use of the
Partner and User Submissions in the manner contemplated by the Website and these
Terms of Service.
C. For clarity, you retain all of your ownership rights in your Partner and User
Submissions. However, by submitting Partner and User Submissions to InstantEncore,
you hereby grant InstantEncore a worldwide, non-exclusive, royalty-free, sublicenseable
and transferable license to use, reproduce, distribute, prepare derivative works
of, display, and perform the Partner and User Submissions in connection with the
InstantEncore Website and InstantEncore's (and its successors' and affiliates')
business, including without limitation for promoting and redistributing part or
all of the InstantEncore Website (and derivative works thereof) in any media formats
and through any media channels. You also hereby grant each user of the InstantEncore
Website a non-exclusive license to access your Partner and User Submissions through
the Website, and to use, reproduce, distribute, display and perform such Partner
and User Submissions as permitted through the functionality of the Website and under
these Terms of Service. The above licenses granted by you terminate within a commercially
reasonable time after you remove or delete your Partner and/or User Submissions
from the InstantEncore Service. You understand and agree, however, that InstantEncore
may retain, but not display, distribute, or perform, server copies of Partner and
User Submissions that have been removed or deleted. The above licenses granted by
you in User Comments are perpetual and irrevocable.
D. In connection with Partner and User Submissions, you further agree that you will
not submit material that is copyrighted, protected by trade secret or otherwise
subject to third party proprietary rights, including privacy and publicity rights,
unless you are the owner of such rights or have permission from their rightful owner
to post the material and to grant InstantEncore all of the license rights granted
E. You further agree that you will not, in connection with Partner and User Submissions,
submit material that is contrary to the InstantEncore Community Guidelines,
which may be updated from time to time, or contrary to applicable local, national,
and international laws and regulations.
F. InstantEncore does not endorse any Partner and/or User Submission or any opinion,
recommendation, or advice expressed therein, and InstantEncore expressly disclaims
any and all liability in connection with Partner and User Submissions. InstantEncore
does not permit copyright infringing activities and infringement of intellectual
property rights on its Website, and InstantEncore will remove all Content and Partner
and/or User Submissions if properly notified that such Content or Partner or User
Submission infringes on another's intellectual property rights. InstantEncore reserves
the right to remove Content and Partner and User Submissions without prior notice.
7. Account Termination Policy
A. InstantEncore will terminate a User's access to its Website if, under appropriate
circumstances, they are determined to be a repeat infringer.
B. InstantEncore reserves the right to decide whether Content or a Partner or User
Submission is appropriate and complies with these Terms of Service for violations
other than copyright infringement, such as, but not limited to, pornography, obscene
or defamatory material, or excessive length. InstantEncore may remove such Partner
or User Submissions and/or terminate a Partner or User's access for uploading or
adding such material in violation of these Terms of Service at any time, without
prior notice and at its sole discretion.
8. Digital Millennium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any User Submission
or other content infringes upon your copyrights, you may submit a notification pursuant
to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent
with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the
owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject
of infringing activity and that is to be removed or access to which is to be disabled
and information reasonably sufficient to permit the service provider to locate the
- Information reasonably sufficient to permit the service provider to contact you,
such as an address, telephone number, and, if available, an electronic mail;
- 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 the law; and
- A statement that the information in the notification is accurate, and under penalty
of perjury, that you are authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed.
InstantEncore's designated Copyright Agent to receive notifications of claimed infringement
is: Evan Schumacher, 8380 Miramar Mall Road, Suite 200, San Diego, CA 92121, email:
firstname.lastname@example.org, fax: 858-924-9800. For clarity, only DMCA notices should
go to the Copyright Agent; any other feedback, comments, requests for technical
support, and other communications should be directed to InstantEncore customer service
You acknowledge that if you fail to comply with all of the requirements of this
Section 5(D), your DMCA notice may not be valid.
B. Counter-Notice. If you believe that your User Submission that was removed (or
to which access was disabled) is not infringing, or that you have the authorization
from the copyright owner, the copyright owner's agent, or pursuant to the law, to
post and use the content in your Partner and/or User Submission, you may send a
counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been
disabled and the location at which the content appeared before it was removed or
- A statement that you have a good faith belief that the content was removed or disabled
as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent
to the jurisdiction of the federal court in San Diego, California, and a statement
that you will accept service of process from the person who provided notification
of the alleged infringement.
If a counter-notice is received by the Copyright Agent, InstantEncore may send a
copy of the counter-notice to the original complaining party informing that person
that it may replace the removed content or cease disabling it in 10 business days.
Unless the copyright owner files an action seeking a court order against the content
provider, member or user, the removed content may be replaced, or access to it restored,
in 10 to 14 business days or more after receipt of the counter-notice, at InstantEncore's
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE INSTANTENCORE WEBSITE SHALL BE AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, INSTANTENCORE, ITS OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION
WITH THE WEBSITE AND YOUR USE THEREOF. INSTANTENCORE MAKES NO WARRANTIES OR REPRESENTATIONS
ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY
SITES LINKED TO THIS SITE AND 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 AND USE OF OUR WEBSITE,
(III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL
PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION
OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN
HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD
PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE
OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED,
OR OTHERWISE MADE AVAILABLE VIA THE INSTANTENCORE WEBSITE. INSTANTENCORE DOES NOT
WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE
ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE INSTANTENCORE WEBSITE OR ANY
HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND INSTANTENCORE
WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION
BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE
OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE
YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10. Limitation of Liability
IN NO EVENT SHALL INSTANTENCORE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS,
BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT,
(II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM
YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF
OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION
STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR
WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED
TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS
IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR
USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA
THE INSTANTENCORE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT INSTANTENCORE SHALL NOT BE LIABLE FOR USER SUBMISSIONS
OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE
RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Website is controlled and offered by InstantEncore from its facilities in the
United States of America. InstantEncore makes no representations that the InstantEncore
Website is appropriate or available for use in other locations. Those who access
or use the InstantEncore Website from other jurisdictions do so at their own volition
and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless InstantEncore, its parent corporation,
officers, directors, employees and agents, 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 InstantEncore Website; (ii) your violation of any term of these Terms of Service;
(iii) your violation of any third party right, including without limitation any
copyright, property, or privacy right; or (iv) any claim that one of your User Submissions
caused damage to a third party. This defense and indemnification obligation will
survive these Terms of Service and your use of the InstantEncore Website.
12. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor,
or possess legal parental or guardian consent, and are fully able and competent
to enter into the terms, conditions, obligations, affirmations, representations,
and warranties set forth in these Terms of Service, and to abide by and comply with
these Terms of Service. In any case, you affirm that you are over the age of 13,
as the InstantEncore Website is not intended for children under 13. If you are under
13 years of age, then please do not use the InstantEncore Website. There are lots
of other great web sites for you. Talk to your parents about what sites are appropriate
These Terms of Service, and any rights and licenses granted hereunder, may not be
transferred or assigned by you, but may be assigned by InstantEncore without restriction.
You agree that: (i) the InstantEncore Website shall be deemed solely based in California;
and (ii) the InstantEncore Website shall be deemed a passive website that does not
give rise to personal jurisdiction over InstantEncore, either specific or general,
in jurisdictions other than California. These Terms of Service shall be governed
by the internal substantive laws of the State of California, without respect to
its conflict of laws principles. Any claim or dispute between you and InstantEncore
that arises in whole or in part from the InstantEncore Website shall be decided
exclusively by a court of competent jurisdiction located in San Mateo County, California.
These Terms of Service, together with the Privacy Notice at
http://www.InstantEncore.com/privacy and any other legal notices published
by InstantEncore on the Website, shall constitute the entire agreement between you
and InstantEncore concerning the InstantEncore Website. If any provision of these
Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity
of such provision shall not affect the validity of the remaining provisions of these
Terms of Service, which shall remain in full force and effect. No waiver of any
term of this these Terms of Service shall be deemed a further or continuing waiver
of such term or any other term, and InstantEncore's failure to assert any right
or provision under these Terms of Service shall not constitute a waiver of such
right or provision. InstantEncore reserves the right to amend these Terms of Service
at any time and without notice, and it is your responsibility to review these Terms
of Service for any changes. Your use of the InstantEncore Website following any
amendment of these Terms of Service will signify your assent to and acceptance of
its revised terms. YOU AND INSTANTENCORE AGREE THAT ANY CAUSE OF ACTION ARISING
OUT OF OR RELATED TO THE INSTANTENCORE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY