TERMS OF USE

Last Updated: July 26, 2013

These terms of use ("TOU") are an agreement between the users ("you" or "your") of the websites identified below on the one hand and Tom Hess Music Corporation and www.tomhess.net, its subsidiaries and affiliates (collectively, “Company”, “we”, “our”, or “us”) on the other hand (each Company and you shall be a "Party" or, collectively, "Parties"). These TOU apply to the website www.tomhess.net and such other mobile applications, websites, domains and sub-domains and services, however accessed and/or used, whether via personal computers, mobile devices or otherwise, as well as mobile applications, interactive features and downloads that the Company owns, operates, and makes available through its websites and mobile applications (collectively, the “Sites”). This includes interactive features or materials and mobile applications that by their nature interact with the Sites. These TOU govern your use of the Sites and the services (“Services”) and/or content, including, without limitation, any information, text, software, scripts, graphics, photographs, audio and/or visual materials (individually or in combination), features and other materials uploaded, downloaded or appearing on or available through the Sites (collectively, “Content”).

Please read these TOU carefully before accessing or using any part of the Sites. Your access to and use of the Sites, Content and related services are offered to you expressly conditioned on your acceptance in their entirety, without modification, these TOU, the Privacy Policy, and the other policies posted here. Your use of the Sites constitutes your agreement to all such terms, conditions, and notices. Your use of a particular section of the Sites may also be subject to additional terms as set forth in such section ("Additional Terms"). By entering the Sites, you expressly agree to follow, be bound by and adhere to these TOU in their entirety. If you do not agree to these Terms and Conditions in their entirety, you are not authorized to use the Sites in any manner or form whatsoever.

In the event that any of the terms, conditions, and notices contained herein conflict with the Additional Terms, Purchase Terms or other terms and guidelines contained within any particular section of the Sites or with any terms included with any product or service purchased from us, then these TOU shall control.

Intended Audience

The Sites are intended for a general audience aged thirteen (13) years and older. If you are under the age of 13, you are prohibited from using the Sites. Please ask your parent or guardian to visit the Sites with you using their computer account and with them present. If you are under (18) years of age, you may only conduct financial transactions/purchases through the Sites with the permission of your parent or guardian. Please visit the Sites with your parent or guardian so that they may make any transactions you and they may desire.

  • YOU AFFIRMATIVELY REPRESENT AND WARRANT THAT: YOU ARE AT LEAST THIRTEEN (13) YEARS OF AGE (AND, IF UNDER THE AGE OF EIGHTEEN (18), THAT YOU HAVE PERMISSION OF YOUR PARENT OR GUARDIAN TO USE THE SITES); AND, THAT YOU POSSESS THE LEGAL RIGHT TO USE THE SITES IN ACCORDANCE WITH THE STATED TOU POLICIES.
     
  • You hereby agree to supervise usage by, and be responsible for the actions of, any minors who use your computer or mobile device and/or account(s) to ensure compliance herewith.
     

Ownership of Sites/Acceptance of TOU

  • The Sites are owned by Tom Hess Music Corporation. You agree to the following TOU in their entirety, when you: (a) access or use our Site; and/or (b) register for an account and become a member of the Sites (“Member”), which enables you to utilize a host of services made available to Members by and through the Sites.

Site Licenses and Access

  • The Tom Hess Music Corporation grants you a limited license to access and make personal use of the Sites but does not grant you the authority to download or modify any portion of the Tom Hess Music Corporation’s proprietary information, Content found on the Sites, or the Sites themselves, unless you have obtained prior and express written consent from the Tom Hess Music Corporation. This license does not include any derivative use of the Sites or Content or any use of data mining, robots, or similar data gathering and extraction tools.
     
  • You may not frame or utilize framing techniques to enclose any materials located on the Sites, including, without limitation, any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Tom Hess Music Corporation, third parties, or Tom Hess Music Corporation affiliates without express written consent from the Tom Hess Music Corporation. (In the case of third parties, express written consent from the appropriate third party owner/licensee of any materials, including Content, is required). You may not use any Tom Hess Music Corporation tags or any other “hidden text” utilizing the Tom Hess Music Corporation’s name or trademarks without the express written consent of the Tom Hess Music Corporation. Any unauthorized use terminates any permission or license granted by the Tom Hess Music Corporation. For purposes of clarity, these TOU and the license(s) granted to you hereunder EXPRESSLY EXCLUDE the right to use any Content except as made available to you on the Sites. You may not copy or disseminate any Content or other materials from the Sites.
     
  • The Company grants you permission to create a link to the Sites only as follows: the Tom Hess Music Corporation grants to you a limited, revocable, and non-exclusive license to create a hyperlink to the home page of www.tomhess.net so long as the link does not portray the Tom Hess Music Corporation, Content, or the Tom Hess Music Corporation’s products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any Tom Hess Music Corporation logo or other proprietary graphic or trademark as part of the link without first obtaining express written permission from the Tom Hess Music Corporation.
     
  • By using the Sites, you expressly agree that you shall respect the intellectual property rights of all third parties, the Company, and any others who may provide materials and/or other Content to the Sites. We only display our own and/or licensed content. As discussed further below, the information that we provide is for your personal, educational, and non-commercial use.

Purchase Terms

Subject to these TOU, when you make purchases of goods or services through the Sites, those purchases may be subject to additional purchase terms (“Purchase Terms”) to which you must agree before making a purchase.

Forums

Forums are provided for registered Members to interact with one another and, potentially, with Tom Hess Music Corporation. The Forums are intended as a safe place to go to discuss guitar, music, culture and your experiences in music. By participating in the Forum(s), you expressly agree to be bound by and abide by the Forum Rules.

No Unlawful or Prohibited Use

As an express condition of your use of the Sites, you agree, represent, and warrant that you will not use the Sites for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Sites in any manner which could damage, disable, overburden, or impair the Sites or the network(s) connected to the Sites or interfere with any other party’s use and enjoyment of the Sites. You may not use automated means of any kind to manipulate Tom Hess Music Corporation data, information or services. You may not use automated means, including spiders, robots, crawlers, or similar technologies on the Sites or in connection with the Sites for any purpose. You may not decompile, dissemble, reverse engineer, copy, create derivative works or display any of the Sites’ or Tom Hess Music Corporation’s software code. You may not attempt to gain unauthorized access to the Sites, other accounts, computer systems, or networks connected to the Sites through hacking, password mining, or any other means. You may not upload, link to, post or transmit in any way connected to the Sites: content of an illegal nature (including content that violates third party intellectual property rights), pirated software (or software sites), content that facilitates “hacking” or “cracking”, content with the sole purpose of causing harm or inciting hate, or content that could be considered as slanderous or libelous. You may not obtain, or attempt to obtain, any materials or information through any means not intentionally made available through the Sites.

Without limitation, bullying, harassment, obscene or lewd content, pretexting and illegal conduct of any kind are strictly prohibited. Company reserves the right, without notice, to terminate the account of any Member engaging in such conduct on or through the Sites.

Tom Hess Music Corporation reserves the right, in its sole and exclusive discretion, to immediately suspend or terminate the account(s) of and/or any and all access to the Sites for any user of the Sites or Member who violates any of the above, including, without limitation, the Forum Rules. You expressly understand and agree that violation of the above may result in termination of your access and/or account without refund of any fees.

Personal Non-Commercial Use Limitation

Unless otherwise specified, the Sites are for your personal, educational and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content, information, software, products, services or Member Services obtained from the Sites.

Modification of the TOU

Tom Hess Music Corporation reserves the right to change the terms, conditions, and notices concerning your use of the Sites without notice. You are responsible for regularly reviewing these TOU and the Additional Terms posted on the Sites. We will always post the date that the TOU and/or the Additional Terms were last revised. Your continued use of the Sites constitutes your continued agreement to all such terms, conditions, and notices.

Termination of Access

The Tom Hess Music Corporation reserves the right, in its sole discretion, to terminate or limit your access to any or all of the Sites, or any portion thereof, at any time without notice.

Material Provided to the Company

If you submit any materials, feedback, your original content, or other communications (collectively, “Submission”) to the Sites or to the Tom Hess Music Corporation, you grant the Tom Hess Music Corporation and its designees and sub-licensees permission to use your Submission in connection with the operation of their businesses including, without limitation, the right to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission, and publish your name in connection with your Submission. No compensation will be paid with respect to the use of your Submission, as provided herein. The Tom Hess Music Corporation is under no obligation to post or use any Submission that you provide and the Tom Hess Music Corporation may remove any Submission at any time in its sole discretion.

Copyrights and Trademarks

  • All of the materials and Content appearing on the Sites are either owned, licensed or sub-licensed (including, without limitation, through these TOU) to the Company and are used by the Company in accordance with the applicable licenses and laws. You may not copy, distribute, or otherwise disseminate any materials or Content (including any logos, images, or data), from the Sites unless you are the owner of said materials or content or have express written permission from the owner of said materials.
     
  • If you are a copyright owner and believe that any of the Content appearing on Sites infringes on your copyright, please click here for information on how to submit a claim of copyright infringement.

Member Account, Password, and Security

Certain users and affiliates of the Tom Hess Music Corporation may receive a password from the Tom Hess Music Corporation to access certain information on the Sites. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are solely responsible for any and all activities that occur under your account. You agree to immediately notify the Tom Hess Music Corporation of any unauthorized use of your account or any other breach of security. The Tom Hess Music Corporation will not be liable for any loss that you may incur as a result of someone else using your account or password, either with or without your knowledge. However, you may be held liable for losses incurred by the Tom Hess Music Corporation or a third party due to someone else using your account or password. You may not use any account that is registered to another person at any time without the permission of the account holder and the Tom Hess Music Corporation.

Links to Third Party Websites

  • The Sites may contain links to third party websites (collectively, “Linked Sites”). The Tom Hess Music Corporation does not control any Linked Sites and is therefore not responsible for the content posted to the Linked Sites, including, without limitation, any link contained in a Linked Site, or any changes or updates made to a Linked Site. The Tom Hess Music Corporation is not responsible for webcasting or any other form of transmission received from any Linked Site. The Tom Hess Music Corporation is also not responsible in the event that a Linked Site is not functioning properly. The Tom Hess Music Corporation provides the Linked Sites to you as a convenience, and the inclusion of any link does not imply endorsement by the Tom Hess Music Corporation of the Linked Sites or any association with its operators. You are responsible for reviewing and abiding by the privacy statements and terms of use policies posted on all of the Linked Sites.
     
  • Any contact that you have with third parties (including advertisers) through the Sites or by your participation in promotions, including the delivery of and payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions are solely between you and that third party. The Tom Hess Music Corporation shall not be responsible or liable for any part of any such dealings or promotions.

Disclaimer of Warranties and Limitation of Liability

THE INFORMATION, SOFTWARE, AND PRODUCTS INCLUDED IN OR AVAILABLE THROUGH THE SITES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE SITES AND TO THE INFORMATION THEREIN. THE TOM HESS MUSIC CORPORATION AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITES AT ANY TIME.

THE TOM HESS MUSIC CORPORATION AND ITS SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, ACCURACY OF THE CONTENT, SOFTWARE, PRODUCTS, AND RELATED GRAPHICS CONTAINED WITHIN THE SITES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE TOM HESS MUSIC CORPORATION AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT.

YOU SPECIFICALLY AGREE THAT THE TOM HESS MUSIC CORPORATION SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED (OR NOT SENT OR RECEIVED), OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITES. YOU EXPRESSLY AGREE THAT THE TOM HESS MUSIC CORPORATION IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, MADE BY YOU OR BY A THIRD PARTY. YOU EXPRESSLY AGREE THAT THE TOM HESS MUSIC CORPORATION IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN THE SITES BY ANY THIRD PARTY.

IN NO EVENT SHALL THE TOM HESS MUSIC CORPORATION AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITES, WITH THE DELAY OR INABILITY TO USE THE SITES OR RELATED SERVICES, WITH THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, AND RELATED GRAPHICS OBTAINED THROUGH THE SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE SITES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE TOM HESS MUSIC CORPORATION OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THIS EVENT, THE TOM HESS MUSIC CORPORATION’S LIABILITY TO YOU WILL NOT EXCEED THE AMOUNT PAID BY YOU TO THE TOM HESS MUSIC CORPORATION TO ACCESS THE SITES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF A CLAIM BY YOU AGAINST THE TOM HESS MUSIC CORPORATION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITES, OR WITH ANY PART OF THESE TOU, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITES. 

THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TOM HESS MUSIC CORPORATION. ACCESS TO THE SITES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. IF LIMITED BY LAW IN YOUR JURISDICTION, YOU AGREE TO THE ABOVE AND TO THE MAXIMUM EXTENT PERMITTED IN YOUR JURISDICTION.

Indemnification

You agree to indemnify and hold the Tom Hess Music Corporation and its respective officers, directors, employees, agents, successors, and assigns harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to, or arising out of, your use of the Sites and/or any information (text or graphical), software, or products obtained through the Sites and/or from Tom Hess Music Corporation.

Applicable Law/Agreement to Arbitrate

  • The Parties agree that all services provided by Tom Hess Music Corporation shall be deemed solely based in Illinois.
     
  • The Parties agree that all disputes against Tom Hess Music Corporation and any disputes that may arise out of these TOU or out of each Party’s relationship to with the other, including but not limited to disputes as to these TOU; the Sites license; Sites access restriction and/or termination; Tom Hess Music Corporation's trademarks, copyrights, patents, trade secrets, trade dress and other intellectual property rights; member accounts; privacy; Services, Content, Member Services, and disclaimer of warranties (collectively, “Claims”) shall be governed by the internal laws of the State of Illinois, U.S.A. without regard to choice of law principles.
     
  • The Parties both expressly agree that any and all Claims shall be submitted for final and binding resolution through binding Arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
     
  • The arbitrator, and not any court, federal, state, or local court or agency, shall have exclusive authority to resolve any Claim, including any Claim arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of these TOU including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or User Agreement is void or voidable.

Arbitration Procedures

The Parties agree that any and all disputes that may arise out of these TOU or out of each Party’s relationship to with the other shall be submitted to the American Arbitration Association’s (“AAA”) Chicago, Illinois office, pursuant to their procedures (including filing and notification procedures). The award rendered by the arbitrator shall be final and binding and may be entered in the Circuit Court of Cook County, Illinois and you irrevocably consent to exclusive jurisdiction and venue in AAA and such courts (except that nothing herein shall prevent either Party from initiating a small claims court action).

Prohibition of Class and Representative Actions and Non-Individualized Relief

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

Judicial Forum for Legal Disputes

Unless the Parties agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to either Party or to a particular claim or dispute, either as a result or a decision by the arbitrator or a court order, the Parties agree that any Claim must be resolved exclusively in the Circuit Court of Cook County, Illinois and you irrevocably consent to exclusive jurisdiction and venue in such courts.

Severability/No Waiver

  • If any part of these TOU are determined to be invalid or unenforceable pursuant to applicable law including, without limitation, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by the valid and enforceable provision that is the closest match to the intent of the original provision and the remainder of these TOU shall remain in effect.
     
  • No waiver of any of the terms of these TOU will be valid unless in writing and designated as such. No failure or delay in enforcing a Party's rights shall be construed as a waiver.

Language

It is the express will of the Parties that these TOU, and all related documents, be prepared in English. In the event that these TOU is translated into another language or otherwise reprinted, this English language version of these TOU (as amended) shall govern if any inconsistencies from such translation arise.

Entire Agreement

Unless otherwise specified herein or in a writing executed by the Parties, these TOU constitute the entire agreement between you (the user) and the Tom Hess Music Corporation with respect to the use of the Sites. These TOU supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and the Tom Hess Music Corporation with respect to the Sites.

Errors, Omissions, and Changes

While the Tom Hess Music Corporation makes every effort to ensure the accuracy of the materials and Content presented, these TOU explicitly warns you that this service may include typographical errors and/or technical inaccuracies. The Tom Hess Music Corporation reserves the right to make improvements and/or changes to these TOU and/or to the products and services described on the Sites at any time.

Tom Hess Music Corporation takes reasonable and industry standard measures to protect information transmitted via the Internet. However, please remember that transmissions on the Internet are not always confidential. If you are transmitting confidential information, you are doing so at your own risk.

Customer Service

• If you have any questions, comments, or concerns, please contact the Tom Hess Music Corporation’s customer service department, please email admin@tomhess.net or contact us by mail to Tom Hess Music Corporation, ATTN: Privacy, P.O. Box 113, Cary, IL 60013-0013, U.S.A.

Tom Hess Music Corporation expressly reserves any rights not explicitly granted in these Terms of Use.


 

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