The following Terms and Conditions (together with the Guidelines (as defined below), the “Terms”) apply to all users of www.JoyClarkmusic.com and its associated websites, features, content, materials, products and/or services (collectively, the “Website”), which is owned and/or operated by Tell it to the Wind, LLC (“Tell it to the Wind”,”us” or “we”). The Terms (as defined above) for the Website represent a legally binding agreement between you, an individual user or a single entity (collectively or individually “Users”), and Tell It To The Wind regarding your use of the Website. Together, Users and Tell It To The Wind are each referred to herein individually as a “Party” or collectively as the “Parties”. If you are a User in the European Union (including the United Kingdom, irrespective of its European Union membership status)(“EU Users”), certain parts of these Terms will not apply (as specified in the EU Terms)and the EU Terms (as defined in paragraph 25)will apply instead in respect of those parts (the Terms and, where relevant, the EU Terms, together, the “Combined Terms”).
When using the Website, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time on the Website (the “Guidelines”). All Guidelines are hereby incorporated by reference into these Combined Terms. If you use the Website on behalf of a company, organization, or other entity, then (a) “Users” includes you and that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Combined Terms and that you agree to these Combined Terms on the entity’s behalf, and (c) your entity is legally and financially responsible for your use of the Website as well as for the use of your account by others affiliated with your entity, including any employees, agents or contractors.
BEFORE USING THE WEBSITE, PLEASE READ THE FOLLOWING CAREFULLY.
(a) BY REGISTERING FOR AND/OR ACCESSING, BROWSING, OR USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING COMBINED TERMS AND REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE COMBINED TERMS. IF AT ANY TIME YOU DO NOT AGREE TO THESE COMBINED TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE WEBSITE.
(b) THESE TERMS INCLUDE A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICES.
BY USING ANY OF THE SERVICES, YOU AGREE TO THESE COMBINED TERMS.
- Eligibility. You are prohibited from using the Website unless you are over the age of 16. You represent that you are fully able and competent to enter the terms, conditions, obligations, affirmations, representations and warranties set forth in these Combined Terms and to abide by and comply with these Combined Terms and are over the age of 16.
- Modification of the Combined Terms. Tell It To The Wind reserves the right, at our discretion, to change, modify, add, or remove portions of these Combined Terms at any time for any reason, and we may notify you of such changes through any of a variety of means, including a change to the “Last Updated” date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. In the event of a material change that may directly affect your account on the Website, if any, we may notify you via the most recent e-mail address that you have provided to us in conjunction with your account. Please check these Combined Terms periodically for changes. Your continued use of the Website after the posting of changes to the Combined Terms constitutes your binding acceptance of such changes. If you do not agree with the modifications to the Combined Terms, then please do not access or use the Website.
- Website Access and Linking.
(a) Tell It To The Wind grants you permission to use the Website as set forth in these Combined Terms, provided that and for so long as (to the extent only that any such restriction is permissible under applicable law) (i) you use the Website solely for your personal use; (ii) except as expressly permitted in these Combined Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Website in any medium without Tell it to the Wind’s prior written authorization; (iii) you do not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purposes; (iv) you do not engage in any of the prohibited uses described in paragraph 10 (Prohibited Uses of the Website) below; and (v) you otherwise fully comply with these Combined Terms. The Website is controlled and offered by Tell It To The Wind from its facilities in the United States of America.
(b) Tell It To The Wind makes no representations that the Website is appropriate or available for use in other locations. If you are accessing or using the Website from other jurisdictions, you are responsible for compliance with local law. To the extent allowed in the jurisdiction where you are located, you waive your right to assert claims or avail yourself of protections afforded you in that jurisdiction which are not available in the United States of America.
- Ownership; Proprietary Rights.
(a) General. The Website, including the content, text, visual interfaces, interactive features, audio, video, audio-visual material, information, graphics, design, compilation, computer code, copyright, products, software, services, proprietary information, service marks, trademarks (including without limitation Joy Clark™, Joy Clark™, and all related trademarks), trade names, distinctive information such as logos, the selection, sequence, “look and feel” and arrangement of items, and all other elements of the Website that are provided by Tell It To The Wind(” Tell It To The WindMaterials”), are owned and/or licensed to Tell it to the Wind, and are legally protected, without limitation, under U.S. federal and state laws and regulations, as well as applicable foreign laws, regulations and treaties. Tell It To The WindMaterials do not include Non-Tell It To The Wind content (as defined below). Except as expressly authorized by Tell it to the Wind, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Website or the Tell It To The WindMaterials. Tell It To The Wind reserves all rights not expressly granted in these Combined Terms. You shall not acquire any right, title, or interest to the Tell It To The WindMaterials, except for the limited rights expressly set forth in these Combined Terms.
(b) Downloadable Software. If any of the Tell It To The Wind materials that we make available to you is software which is capable of being downloaded or accessed, then the software and all files, images, content and data relating to the software is licensed to you by us but solely for the following limited use. This license is a personal, limited, non-transferable, non-sublicensable, non-exclusive, revocable license, and we reserve the right to alter or revoke the license at any time by providing reasonable notice to you. Upon receiving notice of revocation, you must promptly destroy all copies of the software in your possession and/or residing on systems under your control. The limited rights granted to you to access and use such software comprise a limited license and do not constitute the sale of any software program. You do not own the downloaded software, and we do not transfer ownership of the software to you. We retain full ownership of and title to the downloaded software and all intellectual property rights related to such software. Other than as permitted by, or to the extent that any restriction is not permissible under, applicable law, you may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form (except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation). Software that is downloaded from the Website may be subject to export control laws. If you download software from the Website, you represent and warrant to us that you are not acting in violation of those laws.
- User Content.
(a) General. The Website may now or in the future permit you and other Users to post or link media, text, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content. User Content is not controlled by Tell it to the Wind. Tell It To The Wind makes no representations that your User Content will remain available via the Website in any way. We may remove your User Content at our sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE WEBSITE IS MADE PUBLICLY AVAILABLE TO OTHER USERS OF THE WEBSITE, AND Tell It To The Wind DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
(b) Grant of Rights. By submitting User Content to Tell it to the Wind, you hereby grant Tell It To The Wind and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sub-licenses (including to other Users), to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with the Website and Tell It To The Wind(and its successor’s, transferees’, sub-licensees’ and their respective affiliates’) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant Tell It To The Wind and its affiliates, transferees and sub-licensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each user of the Website a non-exclusive license to access your User Content through the Website and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Website and these Combined Terms. The above licenses granted by you in User Content you submit to the Website shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Website user account, or any User Content following any deactivation or deletion of your Website user account, you may specifically notify Tell It To The Wind regarding the termination of the foregoing license from you to Tell it to the Wind, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Tell it to the Wind. You understand and agree, however, that even following such termination, Tell It To The Wind may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Tell It To The Wind to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Tell It To The Wind and these Combined Terms, and to grant the rights and license set forth in this Section, (ii) your User Content is true and accurate, and (iii) Tell it to the Wind’s use of such User Content pursuant to these Combined Terms, and Tell it to the Wind’s exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation.
(d) Prohibited Uses of User Content. Except as otherwise permitted by these Combined Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Website : (i) any falsehoods or misrepresentations that could damage Tell It To The Wind or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.
(e) No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.
- Non- Tell It To The WindContent Disclaimer. You understand that when using the Website, you will be exposed to User Content, advertising and other third party content (together, the “Non- Tell It To The Wind Content”) from a variety of sources, and that you may be exposed to Non- Tell It To The WindContent that is inaccurate, offensive, indecent, or otherwise objectionable. Tell It To The Wind does not endorse any non-Tell It To The WindContent or any opinion, recommendation, or advice expressed therein. UNDER NO CIRCUMSTANCES WILL Tell It To The Wind BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH THE NON- Tell It To The WindCONTENT, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY NON- Tell It To The WindCONTENT, ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION WITH REGARD TO ANY NON- Tell It To The WindCONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY NON- Tell It To The WindCONTENT POSTED, EMAILED OR OTHERWISE DISPLAYED OR TRANSMITTED THROUGH THE WEBSITE.
- Non-Monitoring of Users and Non- Tell It To The WindContent. You understand that you, and not Tell it to the Wind, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through the Website. Tell It To The Wind does not control non-Tell It To The WindContent posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Non-Tell It To The WindContent for any purpose. If at any time Tell It To The Wind chooses, in its sole discretion, to monitor the Non- Tell It To The WindContent, Tell It To The Wind nonetheless assumes no responsibility for the Non- Tell It To The WindContent, no obligation to modify or remove any inappropriate Non- Tell It To The WindContent, no obligation to continue to monitor the Non- Tell It To The WindContent and no responsibility for the conduct of the User or other person or entity submitting any such Non- Tell It To The WindContent. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other non-Tell It To The WindContent, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Non- Tell It To The WindContent.
- Removal of Non- Tell It To The WindContent. Tell It To The Wind and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or to remove or disable access to, any non-Tell It To The WindContent that is available on the Website in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
- Prohibited Uses of the Website.
(a) As a condition of your use of the Website, you hereby represent and warrant that you will not use the Website for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Combined Terms.
(b) Any use by you of any of the Tell It To The Wind materials and Websites other than for your personal use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Website, use of the Website, access to the Website, or Non- Tell It To The Wind content obtained through the Website, for any purpose other than for your personal use.
(c) You agree not to use the Website if you do not meet the eligibility requirements described in Section 1 above.
(d) You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Website, or collect, or attempt to collect personal information about Users or third parties without their consent.
(e) You agree not to intentionally interfere with or damage, impair or disable the operation of the Website or any User’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Website with the intended result of denying service to other Users.
(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website, or features that enforce limitations on the use of the Website.
(g) You agree not to attempt to gain unauthorized access to the Website or any part of it, other accounts, computer systems or networks connected to the Website or any part of it, through hacking, password mining or any other means or overburden, disrupt, interfere or attempt to interfere with the proper working of the Website or any activities conducted through the Website.
(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Website. You agree neither to modify the Website in any manner or form (other than contributing User Content as enabled by the Website’s functionality and in accordance with these Combined terms), nor to use modified versions of the Website, including (without limitation) for the purpose of obtaining unauthorized access to the Website.
(i) You agree that you will not use any robot, spider, scraper, or other automated means to access, scrape, mine, extract, collect or copy information from, the Website for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Website.
(j) You agree not to utilize framing techniques to enclose any trademark, logo, or other Tell It To The Wind materials without our express prior written consent. You agree not to use any meta tags or any other “hidden text” utilizing Tell it to the Wind’s name or trademarks without Tell it to the Wind’s express prior written consent.
(k) You agree not to use any Tell It To The Wind logos, graphics, or trademarks as part of the link without our express prior written consent.
(l) You agree not to make unsolicited offers, advertisements, proposals or send junk mail or spam to other users of the Website. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(m) You agree not to reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(n) You agree not to modify, adapt, translate, or create derivative works based upon the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(o) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(p) You agree not to use the Website in any way that would affect us adversely or reflect negatively on us, the Website, or the singers or celebrities featured on the Website, our goodwill, our employees or moderators, our name or reputation, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Website, or from advertising, linking or becoming a supplier to us in connection with the Website.
Unauthorized or prohibited use of the Website or the Tell It To The Wind materials may subject you to civil liability, criminal prosecution, or both under federal, state, and applicable local laws in other countries.
- Account Information and Purchases.
(a) In order to access some features of the Website, you may have to create an account. You may cancel your account with us at any time by emailing info@ Tell it to the Wind-ent.com. We reserve the right to immediately terminate your account in our sole discretion, and without prior notice to you if you violate the Combined Terms or if we otherwise believe it is necessary to protect our interests or the interests of others.
(b) You acknowledge, consent, and agree that Tell It To The Wind may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to any claim that User Content violates the rights of third parties; (d) provide certain customized features of the Website to you if any; (e) respond if you contact Tell It To The Wind for any reason; or (f) protect the rights, property, or personal safety of Tell it to the Wind, its other Users, and the public. Some aspects of the Website, including our online store located on the Website (the “Store”) may require you to pay a fee, the details of which are available in various areas of the Website that feature the ability to purchase products, features or services. You agree to pay all fees and applicable taxes incurred by you or anyone using your account. We may revise the pricing for products, services or features offered through the Website and the Store at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or services provided by, us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN POLICY OR CANCELLATION POLICY APPLICABLE TO THE STORE OR ANY OF OUR OTHER FEE-BASED PRODUCTS, SERVICES OR FEATURES, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Password. If you register, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Tell it to the Wind. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, Tell It To The Wind OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
- Dealings with Advertisers and other Users.
(a) Your correspondence or business dealings with, or participation in promotions of, advertisers and other Users found on or through the Website are solely between you and such advertiser or User.
(b) YOU AGREE THAT Tell It To The Wind WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS OR USERS ON THE WEBSITE.
- Links and Third-Party Websites.
(a) Linking to the Website. You agree that if you include a link from any other website to the Website, such link may open in a new browser window and shall link to the full version of an HTML formatted page of the Website. You are not permitted to link directly to any image hosted on the Website, such as using an “in-line” linking method to cause the image hosted on the Website to be displayed on another website. You agree not to download or use images hosted on the Website on another website, for any purpose, including, without limitation, posting such images on another website. You agree not to link from any other website to the Website in any manner such that the Website, or any page of the Website, is “framed,” surrounded or obfuscated by any third-party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Website be discontinued, and to revoke your right to link to the Website from any other website at any time.
(b) Reference Sites. Tell it to the Wind, Users and other third parties may provide links on the Website to other sites, including the content therein (“Reference Sites”). Tell It To The Wind has no control over such Reference Sites or their content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by the Website. Tell It To The Wind provides links to you only as a convenience, and the inclusion of any link on the Website does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. If you choose to correspond or engage in transactions with any other person, organization or business found on or through the Website, you acknowledge and agree that we are not a party to, and will not be responsible for, your interaction with such person, organization or business, including its treatment of your information, your User Content, and/or the terms and conditions applicable to any transaction between you and such third party. You agree that we have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such person, organizations or businesses on the Website. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. The Combined Terms do not govern your use of any site other than the Website. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
(c) Purchases on Third-Party Websites. In addition to purchases at the Store, the Website may permit you to make purchases of products or services, including through third-party websites. The terms associated with your transactions for these services and or products are subject to the terms and conditions and privacy policies of the third-party websites. If you have problems or questions regarding a transaction with a third-party website, please contact the third-party website directly.
- Service Availability. Tell It To The Wind may make changes to or discontinue any of the media, web communities, products, or services available within the Website at any time, and without notice. The media, products, or services on the Website may be out of date, and Tell It To The Wind makes no commitment to update these materials on the Website.
- Feedback. You agree that any feedback, analysis, suggestions, and comments to Tell It To The Wind provided by you regarding the Website (collectively, “Feedback”) will become the property of Tell it to the Wind. IN CONSIDERATION OF Tell It To The Wind providing ACCESS TO THE WEBSITE FREE OF CHARGE OR, IN THE CASE OF FEEDBACK PROVIDED USING FEATURES OF THE WEBSITE FOR WHICH YOU MUST PAY A FEE, THEN AS FURTHER CONSIDERATION FOR YOUR ACCESS TO SUCH FEATURES, USER HEREBY ASSIGNS TO Tell It To The Wind ALL RIGHT, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER AGREES THAT Tell It To The Wind SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing assignment and to grant to Tell It To The Wind the rights granted under this Section 16 and that any Feedback which is provided by User to Tell It To The Wind does not infringe any third-party intellectual property rights. Notwithstanding the foregoing assignment, Tell It To The Wind grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.
- User Disagreements. You are solely responsible for your involvement with other Users of the Website. Tell It To The Wind reserves the right, but has no obligation, to monitor disagreements between you and other Users. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Tell It To The Wind disclaims ALL LIABILITY RELATED TO ANY USER DISAGREEMENT. YOU AGREE THAT Tell it to the Wind’S RESOLUTION OF ANY SUCH DISPUTES WILL BE FINAL AND BINDING.
- Terms and Conditions Violations; Termination.
(a) Tell it to the Wind. You agree that Tell it to the Wind, in its sole discretion, may terminate any account (or any part thereof) you may have through the Website or your use of the Website, and remove and discard all or any part of your account or any User Content. You agree that your access to the Website or any account you may have or portion thereof may be terminated without prior notice, and you agree that Tell It To The Wind shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies Tell It To The Wind may have at law or in equity.
- INDEMNIFICATION; HOLD HARMLESS. SUBJECT TO THE NEXT PARAGRAPH, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS Tell it to the Wind, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE WEBSITE; (II) YOUR USER CONTENT, INCLUDING Tell it to the Wind’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY Tell it to the Wind. Tell It To The Wind reserves THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF Tell it to the Wind. Tell It To The Wind will USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
- DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, AND SECTIONS 21 AND 22 BELOW, THE TERM Tell It To The Wind INCLUDES Tell it to the Wind’s PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(b) NO WARRANTIES. SUBJECT ALWAYS TO SECTION 22(a), Tell It To The Wind disclaims ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Tell It To The Wind OR THROUGH THE WEBSITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(c) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, USER CONTENT, NON- Tell It To The Wind content, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(d) WEBSITE OPERATION AND NON- Tell It To The WindCONTENT. Tell It To The Wind DOES NOT WARRANT THAT THE Tell It To The Wind materials, USER CONTENT, NON- Tell It To The WindCONTENT, WEBSITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(e) ACCURACY. Tell It To The Wind DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(f) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
- LIMITATION OF LIABILITY AND DAMAGES.
(a) LIMITATION OF LIABILITY. SUBJECT ALWAYS TO SECTION 22(a), UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Tell It To The WindOR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE Tell It To The WindMATERIALS AND USER CONTENT ON THE WEBSITE OR ANY REFERENCE SITES, THE WEBSITE ITSELF, OR ANY OTHER INTERACTIONS WITH Tell it to the Wind, EVEN IF Tell It To The WindHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LIMITATION OF DAMAGES. SUBJECT ALWAYS TO SECTION 22(a), IN NO EVENT SHALL Tell It To The WindOR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU TO Tell It To The Wind(IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
(c) THIRD PARTY PRODUCTS AND SERVICES. SOME USERS MAY USE THE WEBSITE TO MARKET PRODUCTS AND/OR SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN Tell It To The WindAND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE WEBSITE OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES.
- LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(a) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON, OR DISCLAIMERS OF, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS, DISCLAIMERS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS, DISCLAIMERS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(b) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT Tell It To The WindHAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Tell it to the Wind, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Tell it to the Wind. YOU ACKNOWLEDGE AND AGREE THAT Tell It To The WindWOULD NOT BE ABLE TO PROVIDE THE WEBSITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- Digital Millennium Copyright Act Compliance.
(a) Infringement Claims. If you are a copyright owner or an agent thereof and believe that any User Content or other Non- Tell It To The Wind 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):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Website and that is to be removed or access to which is to be disabled, including information reasonable sufficient to allow use to located such material on the Website (such as a link or URL);
(iv) Information reasonably sufficient to permit Tell It To The Wind to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that you as the complaining party has 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
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Tell it to the Wind’s designated Copyright Agent to receive notifications of claimed infringement is:
TELL IT TO THE WIND, LLC
701 Loyola Ave.
New Orleans, Louisiana, 70152
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR INFRINGEMENT NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b) Notice and Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA or local laws where applicable as per para (e) below in the event a counter-notification is received, as described below.
We may, at our discretion, deny access to the Website by, or disable and/or terminate the accounts of, Users who may be infringers (including repeat infringers).
(c) Copyright Counter-Notices. If content you posted on the Website was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
(i) To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
(ii) Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
(i) Identify the specific URLs of (or other information sufficient to allow us to identify) material that Tell It To The Windhas removed or to which Tell It To The Windhas disabled access.
(ii) Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Tell It To The Windaccount.
(iii) Provide a statement that you consent to the jurisdiction of the Southern District of New York and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person.
(iv) Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
(v) Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
TELL IT TO THE WIND, LLC
701 Loyola Ave.
New Orleans, Louisiana, 70152
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Website. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Website is being infringed or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(f) Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. Tell It To The Wind may provide you with notices, including those regarding changes to these Combined Terms, by email, regular mail, or postings on the Website. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Tell It To The Wind is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Tell It To The Wind with notices only by mail to the address indicated in Section 24(l)below.
(b) Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. The Uniform Computer Information Transactions Act does not apply to these Terms.
You agree that any action at law or in equity arising out of or relating to these Terms or the Website shall be filed only in the state or federal courts in and for the County of New York and State of New York and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action. You agree that you will not file or participate in a class action against us. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION UNDER THIS AGREEMENT, YOUR USE OF THE WEBSITE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY. You agree that a breach of these Terms will cause irreparable injury to Tell It To The Wind for which monetary damages would not be an adequate remedy and Tell It To The Wind shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
(c) Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If, for any reason, we believe, have reason to believe, suspect or are notified of any act, omission or circumstances which may or could (i) compromise or endanger the health, well-being or safety of any person, (ii) cause or lead to damage to persons or property (tangible or intangible), (iii) adversely affect, infringe upon or misappropriate the rights of others, (iv) harass or interfere with any other user or person, firm or enterprise, (v) interfere with or bypass our security or other protective measures applicable to our systems, networks and communications capabilities, (vi) breach or violate these Terms, or (vii) violate any law or regulation, we have the right, reserving cumulatively all other rights and remedies available to us at law, in equity and under this agreement with you, to report and provide information to any and all regulatory and law enforcement authorities and agencies and take any action permitted by law.
(d) Waiver. A provision of these Combined Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of either party to exercise or enforce any right or provision of these Combined Terms will not constitute a waiver of such right or provision.
(e) Severability. If any provision of these Combined Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Combined Terms and shall not affect the validity and enforceability of any remaining provisions.
(f) Assignment. The Combined Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Tell It To The Wind without restriction. Any assignment attempted to be made in violation of these Combined Terms shall be void.
(g) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Tell It To The Windas a result of these Combined Terms or use of the Website. You further acknowledge that by submitting User Content or other Non- Tell It To The Wind Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Tell It To The Wind other than pursuant to these Combined Terms.
(h) Survival. Sections 5, 6, 7, 9, 11 (other than your duty to update account information), 13, and 15-24 (as well as all relevant portions of the EU Terms, where applicable) will survive any termination of these Combined Terms or your account, whether by you or by Tell it to the Wind.
(i) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Combined Terms, and shall not be deemed to limit or affect any of the provisions hereof.
(j) Entire Agreement. This is the entire agreement between you and Tell It To The Windrelating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Tell it to the Wind.
- Supplemental Terms — Users in the European Union.
If you are an EU User, paragraph (b) of the preamble and Sections4(b) (Website Access and Linking), 11(c) (Account Information and Purchases), 13(b) (Dealings with Advertisers and Other Users), 19 (Indemnification; Hold Harmless), 20 (Disclaimers; No Warranties), 21 (Limitation of Liability and Damages), 24(b) (Governing Law and Jurisdiction), and 24(c) (Claims) of the Terms will be replaced by the terms set out below (the “EU Terms”).
(a) Warranties. We do not guarantee that the Website is or will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to access our Website. You should use your own virus protection software.
(b) Purchases made in the EU. If you make a purchase through our shop from the EU, you have a legal right to change your mind within 14 days and receive a refund. These are your rights under the Consumer Contracts Regulations 2013. You do not have a right to change your mind in respect of: any apparel item deemed by the Joy Clark Store to show obvious signs of use, any item that is not in its original condition for reasons not due to an error on the part of the Joy Clark Store, any physical media (CDs, DVDs, vinyl, etc) that has been opened (removed from its plastic wrap), underwear or bathing suits, music or book pre-orders, any autographed, collectible items, any downloadable media bundles, anything listed as limited edition, sale or clearance items. For purchase of services, you have 14 days after the day we email you to confirm we accept your order. However, once we have completed the services you cannot change your mind, even if the period is still running. If you cancel after we have started the services, you must pay us for the services provided up until the time you tell us that you have changed your mind. For digital content for download or streaming, you have 14 days after the day we email you to confirm we accept your order, or, if earlier, until you start downloading or streaming. If we delivered the digital content to you immediately, and you agreed to this when ordering, you will not have a right to change your mind. For goods, you have 14 days after the day you (or someone you nominate) receives the goods (or the first delivery of the goods, if several deliveries). If you have changed your mind, please let us know by emailing us at firstname.lastname@example.org with your order number. If you tell us you have changed your mind after goods have been dispatched to you or you have received them, you must return them to us at your own cost. You must return the goods by posting them back to us at:
You must send off the goods within 14 days of telling us you wish to end the contract. We will refund you the price you paid for the products including delivery costs, by the method you used for payment. However, we may make deductions, to reflect any reduction in the value of the goods, if this has been caused by your handling them in a way which would not be permitted in a shop. If we refund you the price paid before we are able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount. The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer. For example, if we offer delivery of goods within 5-7 days at one cost but you choose to have the goods delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option. Where the product is a service, we may deduct from any refund an amount for the supply of the service for the period for which it was supplied, ending with the time when you told us you had changed your mind. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the contract. If the products are goods, your refund will be made within 14 days from the day on which we receive the product back from you or, if earlier, the day on which you provide us with evidence that you have sent the product back to us. In all other cases, your refund will be made within 14 days of your telling us you have changed your mind.
(c) As Is and As Available Basis. Subject to these EU Terms (including paragraphs (d), (e) and (f) below), you expressly agree that the Website is provided on an “as is” and “as available” basis.
(d) No Liability for Unforeseeable Loss and Damage. Tell It To The Wind is not responsible for loss or damage resulting from your use of the Website that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you acknowledge and agree to these Combined terms, both Tell It To The Wind and you are aware that it might occur.
(e) No Liability for Commercial Losses. The Website is provided for private, non-commercial use only. Tell It To The Wind has no liability for any loss of profit, loss of business, loss of contract, business interruption, or loss of business opportunity in connection with your use of the Website.
(f) Exclusions Prevented by Law. Nothing in these Combined Terms excludes or limits Tell it to the Wind’s liability for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by negligence; or (c) any other liability which cannot be excluded or limited by applicable law. Tell It To The Wind and you agree that Tell it to the Wind’s liability in respect of claims under (c) relating to these Combined Terms or in relation to use of the Website is limited to a maximum of the sum of the amounts paid by you to Tell It To The Wind(if any) in relation to use of the Website in the 12 months preceding the date of the claim.With regard to customers in Germany only, the following shall also apply: nothing shall limit or exclude our liability for damages caused by intentional misconduct, gross negligence or culpable breach of an essential contract duty. An essential contractual duty is an obligation whose fulfillment is a prerequisite for enabling the proper performance of the contract and on whose fulfillment you may reasonably expect to be able to rely on.
(g) Disputes; Governing Law. For EU Users, these Combined Terms, and the use of the Website and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales, subject only to any mandatory provisions of consumer law in the country in which you reside. You irrevocably agree that the courts of the country in which you reside shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Combined Terms or its subject matter or formation.
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