www.arkade.com, is a website (“the Site”) operated by IIPS LIMITED (“us”, “our” or “we”).
The following constitutes a legal agreement between the Subscriber (“you”) and us with respect to the services provided by our Site, the terms of which are set out below. You must be at least 18 years of age to agree to and enter into this Agreement on your own behalf and to register for use of this Site. If you are under 18 but at least 15 years of age, you must present this Agreement to your parent or legal guardian, and he or she must check the box below to enter into this Agreement on your behalf. Children under the age of 15 may not register for this Site, and parents or legal guardians may not register on their behalf. By checking the box indicating your acceptance of this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering into it on behalf of your child or a child in your legal care. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of this Site, including all legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Site.
Material: All content which incorporates intellectual property, including but not limited to recordings in MP3 or other file format , artist’s photographs, biographies, and/or artwork.
The Microsite: The part of the www.arkade.com website designated for the Subscriber’s Material.
Download: The electronic transfer of Material from the Site that may be saved to the hard drive of a computer.
Upload: The electronic transfer of Material to the Site that may be saved to the hard drive of a computer.
Our Providers: Our agents, employees, consultants, subsidiaries, affiliates, subscribers, licensors, licensees and/or suppliers.
As soon as credit card payment of your subscription has been received and accepted we will open a Microsite designated for your use, for one year (the “Subscription Period”) within the Site, and will permit you to upload your Material upon and subject to the following terms and conditions regarding the access, use and distribution of your Materials on The Microsite. You may add and/or remove your Material or any part of it from The Microsite at any time during the Subscription Period but we will not refund your subscription fee or any part of it if you decide to so remove it.
1. You CONFIRM AND WARRANT that:-
1.1 all Material uploaded by you to The Microsite is your property or property that is licensed to you under an express written agreement which entitles you to upload the Material to The Microsite;.
1.2 your Material does not and will not infringe the intellectual property rights or any other rights of any person or entity;
1.3 your Material will not be defamatory, vulgar, offensive, obscene, pornographic, false, misleading, racist, illegal, potentially libellous or likely to encourage the same or to bring the Site or our name or the name of Our Providers into disrepute. We are the sole arbiters of whether or not your Material falls into any of these categories.
1.4 your Material will not breach any applicable law whether criminal or civil nor will it give rise to the commission of a wrongful act of any sort;
1.5 you will not permit any advertising or sponsorship on The Microsite;
1.6 you will only use the Site for the purposes referred to in this Agreement and will not access the Site or use information gathered from it to send unsolicited e-mails;
We AGREE that:-
2.1 it is our responsibility to ensure that we account to you for one hundred per cent (100%) of the net receipts from the sale of downloads of your Material from The Microsite at the Site and in this connection “net receipts” shall mean the price you set for the sale of your Material less the bank transfer charges, commissions and currency conversion charges (if any) incurred in the transfer of the net receipts to you. A processing charge will be added by us to the price you set and this sum will be retained by us to meet the charges for credit card processing which we incur in the sale of your Material to consumers. For the avoidance of doubt a sale is deemed to have been effected once we have received confirmation from our clearing bank that payment has been received;
2.2. it is our responsibility to account to you within sixty (60) days of each three (3) month period ending on 31st March, 30th June, 30th September and 31st December in each year at which time payment of the amount due to you will be made if above fifty pounds (£50). If the sum due to you is under fifty pounds (£50) then the amount due to you will be carried forward to the next three (3) month period or such later period when the sum of fifty pounds (£50) shall have been earned;
[We cannot pay unless the subscriber has provided us with a valid Click2Pay account number. It is the responsibility of the subscriber to ensure that he completes this part of the subscription procedure;]
2.3 it is our responsibility to ensure that all sums which are outstanding at the end of your Subscription Period are paid pursuant to this Clause 2;
2.4 we will not store your credit card or debit card details anywhere in the Site.
You AGREE:-
3.1 it is your responsibility to administer the management and content of The Microsite from your administrative page on the Site;
3.2 it is your responsibility to undertake to comply with all copyright laws and to check that the Materials you upload to The Microsite will not be in breach of copyright;(see also 1.1)
3.3 it is your responsibility to ensure that you account properly and pay any person or entity for any or all rights to use the recorded performances and/or other Material which you have uploaded to The Microsite (including but not limited to writers, publishers, musicians, producers, and third party licensors; (See our online instruction manual for some useful links regarding these issues.)
3.4 it is your responsibility to ensure that all costs associated with the Material, are paid in respect of (but not limited to) artwork, biographies, liner notes, photographs and recordings;
3.5 it is your responsibility to ensure that if you are not already registered for VAT or other applicable local sales taxes, you will regularly check your income level from time to time to determine whether you have become liable to register for payment of the same;
3.6 it is your responsibility to ensure that you account properly and pay applicable VAT or sales taxes in respect of sales by way of download of your Material from The Microsite;
3.7 it is your responsibility to pay any monies due (if any) from all sums received by you from downloads of your Material, to the Mechanical Copyright Protection Society or any other collection society of which you are a member in any part of the World. (See our online instruction manual for some useful links regarding these issues);
3.8 it is your responsibility when subscribing to provide accurate personal information (“Registration Data”) and to update your Registration Data as necessary to keep it accurate. You undertake that all the details you provide to us for the purpose of uploading Material are correct and that the credit card or debit card that you propose to use is your own or that of a third party who has given you full permission and authority to use it and that you or such third party have sufficient funds to meet your credit card obligation to us;
3.9 it is your responsibility to ensure that your email address is current otherwise certain functions of the Site will not be available to you. We will only use your Registration Data in accordance with the Data Protection Act 1998 and our privacy policy, which you can review at http://www.arkade.com/privacypolicy.html;
3.10 it is your responsibility to maintain the confidentiality and security of your Registration Data, especially your user name and password. You will not allow others to use your user name or password and you will notify us immediately of any unauthorised use of your user name or password. We shall not be responsible for any losses arising out of the unauthorised use of your user name and/or password and you agree to indemnify and hold harmless us and/or Our Providers as applicable, for any improper, unauthorised or illegal uses of the same;
3.11 it is your responsibility to ensure that you back up all your Material off line. Whilst we will use our reasonable endeavours to ensure that back up procedures are run on our site we will not accept any responsibility for the loss of any or all of your Material for whatever reason;
3.12 It is your responsibility to monitor the download activity on the Microsite to ensure that you do not exceed the download allocation made to you in accordance with your subscription. If you are likely to exceed your download allocation, you must take immediate steps to upgrade your subscription. If you do not do so a subscription surcharge will be applied to each download transacted above your subscription limit. Details of download surcharges are included in the email confirming your subscription and in the subscribers help manual. We will use our reasonable endeavours to notify you by e-mail when you are approaching your maximum download allocation and also if you have exceeded the same, but we accept no responsibility for failing to communicate with you in relation to this matter.
[Subscribers should be informed of the minimum charge applicable to downloads, and that the site will not allow any more downloads to be sold than the pre-paid number if a subscriber sets a price lower than the minimum. If a subscriber wants to offer more downloads at a price lower than the minimum then they need to pre-purchase more. This is to make sure their account never goes into debt.]
4.1 We may in our sole discretion terminate this Agreement and/or suspend The Microsite (or any part of it) or your account at any time without notice to you in the event that you breach (or we reasonably suspect that you have breached) any provision of this Agreement and we shall have no liability or responsibility to you for any loss or damage suffered. You understand and agree that your sole right and remedy with respect to any dispute with us is the cancellation of your account and Site membership.
4.2 We have the right to suspend or terminate your access to the administrative area of The Microsite or require you to edit your Material or any part of it which has been posted on the Site if you, or the Material so posted, appears in our absolute discretion to be in breach of any provision of this Agreement. If your access has been suspended or terminated you will not be permitted to re-register or to re-access the Site without our prior consent. You further agree that if The Microsite (or any part of it) is closed down or access to it is suspended by us, it will be withdrawn from public access and no part of your subscription fee shall be refunded to you.
You will only use the Site for the purposes referred to in this Agreement and not access the Site or use information gathered from it to send unsolicited e-mails.
5.1 By agreeing to these terms and conditions you grant to us the non-exclusive right to use on your behalf on the Site, your name, professional and/or group name, photographs, likenesses, biographical material, digital music/MP3 files and any other information supplied by you as part of your Material.
5.2 The non-exclusive right granted in 5.1 gives us the right to:
You agree to indemnify and hold harmless us and Our Providers from and against any and all claims, losses, demands, causes of action and judgments (including solicitors’ or attorneys’ fees and court costs) arising from or concerning any breach by you of this Agreement and/or these terms and conditions for your use of the Site and you agree to reimburse us and/or them on demand for any losses, costs or expenses we or they incur as a result thereof.
7.1 You may not assign this Agreement.
7.2 We may assign our rights under this Agreement in whole or in part.
You agree and acknowledge that:
8.1 we may require you to change your password or any other information which permits you access to The Microsite for the purposes of uploading your Material;
8.2 we have the right to withdraw your Material or any part of it from The Microsite and also The Microsite itself for any reason without notice to you and you agree that we will not be responsible for any loss, damage or cost as a result of such unavailability. Although we have no obligation to notify you of the same, we will endeavour to notify you by email of any withdrawal, blocking or suspension of any of your Material on The Microsite. If a download has been ordered containing Material which is subsequently blocked by us, the download will be honoured, but any revenue received will be frozen until the matter which has led to the blocking has been resolved and thereafter the said revenue will be dealt with by us as we will deem appropriate in our absolute discretion;
8.3 we have the right to withdraw your Material from The Microsite at any time after your subscription period has expired;
8.4 our administrators and financial personnel are permitted to have access to the management area of The Microsite;
8.5 we will not be liable for errors or omissions on the Site nor for loss or damage suffered by you as a result of any unavailability of the Site or by any use by you or reliance placed on the Site or its contents including any damage caused to your computer or otherwise howsoever, or any direct, indirect or consequential loss, loss of data and/or any loss of income or profits;
8.6 we shall not be liable to you for the failure of any equipment, data processing system or transmission link and will not be liable to you as a result of any down-time which may occur upon the Site;
8.7 The Site is provided “as is” and you acknowledge that despite our reasonable endeavours the Site may contain bugs, errors and other problems (including, but not by way of limitation) infection by viruses (despite anti-virus protections which may be incorporated) or anything else which may cause contamination or destruction of any sort that may cause system failures. Notwithstanding, we will use all reasonable endeavours to correct any errors and omissions as quickly as practicable after being notified by e-mail to [email protected];
8.8 we shall not be responsible to you for damages or otherwise in respect of any error made to any listing of or reference to your Material or for any unauthorised use by third parties of your Material;
8.9 we shall not be responsible for any offensive e-mails you may receive as a result of the contact facilities being abused;
8.10 we reserve the right at anytime and from time to time to modify or discontinue, temporarily or permanently the Site (or any part thereof) without notice to you and without any liability to you or to any third party;
8.11 you agree and acknowledge that we have the right to compile, publish and use chart, sales or preview data and to allow advertising and sponsorship on the Site or The Microsite or any part of it and/or in any media outside the same;
8.12 on the Site you may be offered automatic links to other websites. Whilst we hope you will be interested in those websites, you acknowledge that their owners may be independent from us and we do not endorse or accept any responsibility for their content;
8.13 we welcome ’hot links’ to the Site, but not ’deep linking’ by which we mean that you may not include a link to our Site (other than the links we supply you with), or display the contents of our Site, surrounded or framed or otherwise surrounded by content not originating from us without our consent. If you would like to licence our content, or the content of any of our subscribers, please contact us at [email protected]. Any unauthorized framing of or linking to the Site will be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress and may result in the termination of this agreement or other remedies as set out in this agreement.
9.1 All intellectual property content on the Site including, without limitation trademarks, button icons, logos, graphics, images and digital downloads is owned by us or Our Providers and is protected by International Copyright laws and your use of them is governed by this Agreement, certain end-user licence agreements, and applicable law.
9.2 You will infringe our rights and/or the rights of Our Providers if you copy or reproduce any part of the Site save for:
9.2.1 a temporary copy of any part of the Site is automatically made or retained by your browser as you browse the Site; or
9.2.2 you print out any pages from the Site as a record of any goods or services you have purchased or sold from it;
9.2.3 you print out a copy of these Terms and Conditions which we would request you to do; or
9.2.4 your own personal use.
Other than for the above four exceptions you must not copy the intellectual property in question for any purpose.
9.3 For the purposes of this Clause 9, "copy" and "copying" shall include non-literal copying as well as the copying of the structure and form of the Site and any elements within it.
You understand and agree that your use of the Site is at your own sole risk. The Site is provided "as is" and without warranty by us or Our Providers, as applicable, and, to the maximum extent allowed by applicable law, we and Our Providers expressly disclaim all warranties, express or implied including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and any warranty of non-infringement. We and Our Providers do not warrant, guarantee, or make any representations regarding the use or the results of the use of the Site with respect to performance, accuracy, reliability, security capability or otherwise. You will not hold us or Our Providers responsible for any damages that result from you accessing (including any software or systems you use to access) the service or using the Site including, but not limited to, infection by virus, damage to any computer, software or systems or portable devices you use to access the same. No oral or written information or advice given by any person shall create a warranty or a representation from us or any of Our Providers.
We make no warranty that any particular CD burner or portable device or software, will be compatible with this Site or any Material uploaded to this Site. It is your sole responsibility to ensure that your system(s) will function correctly with this Site.
Under no circumstances shall we or Our Providers be liable for any unauthorised use of the Site or the Materials.
Under no circumstances shall we or any of Our Providers be liable to you for any consequential, incidental or special damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use the Site, even if we or Our Providers have been advised of the possibility of such damages. To the extent that in a particular circumstance any disclaimer or limitation on damages or liability set forth in this Agreement is prohibited by any law which is applicable, then, instead of the provisions hereof in such particular circumstance, we and Our Providers shall be entitled to the maximum disclaimers and/or limitations on damages and liability available at law or in equity by such applicable law and in no event shall such damages or liability exceed ten pounds (£10).
This Agreement is only for the benefit of you and us and no other person can claim a benefit from this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999 which Act shall not apply to this Agreement.
This Agreement and any other terms or documents referred to herein represent your entire agreement with us with respect to your use of this Site. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. English Law governs this Agreement and your use of the Site, and you expressly agree that the English courts shall have exclusive jurisdiction over any claim or dispute between us or relating in any way to your account or your use of this Site.
13. ACKNOWLEDGEMENTSYou acknowledge that we may change the terms of this Agreement by posting a new Agreement on the Site. You acknowledge that it is your responsibility to check the Site regularly to ascertain if changes have been made and we will use our reasonable endeavours to advise you of any changes. However, your continued use of the Site after such a change will constitute your acceptance of the change.
By clicking the accept button you acknowledge that you have read, understood and agree to be bound by the terms and conditions of this Agreement and by our Privacy Policy, in connection with the Site of www.arkade.com and The Microsite, this being available from www.arkade.com home page.
IIPS Limited is a company incorporated in Ireland under Company Number 237949 Registered office: Nathan House, Lavitts Quay, Cork, Ireland.