This document was last updated September 30, 2011.
Welcome, and thank you for your interest in V-Album Creator. V-Album Creator is an online service located at www.vacreator.com (the "Site") which is owned and operated by us, iBoard LLC ("us," "we," "our"). We provide certain building tools and applications that allow musical artists to create and build an expanded-format digital album called a "V-Album", featuring their own content, including recordings, artwork, videos, lyrics and web links, by utilizing our technology platform (our technology platform is referred to as the "V-Album Creator" and each V-Album is referred to as an "Artist V-Album"). Through the use of the V-Album Creator, artists will have the ability to build an Artist V-Album for their own personal use or to publish an Artist V-Album for sale to their fans through our retail site (the "Retail Site"). For convenience, the Site, the V-Album Creator, and all other products and services offered by us through the Site or through third party sites on our behalf, are sometimes referred to together as the "Service".
These Terms of Service apply to all users of the Service, including users who may visit the Site without registering and users who may use the Service to create and/or publish an Artist V-Album. Users who may visit the Retail Site to purchase an Artist V-Album are not covered by these Terms of Service, but rather shall be subject to the terms and conditions covering the use of the Retail Site, which are provided on the Retail Site. We urge you to read these Terms of Service and any other rules and guidelines, that may from time to time be presented to you through the Service, carefully, as these Terms of Service, and any other such rules, create a binding legal contract between you and us. By accessing the Site or using the Service in any manner, including to create or publish an Artist V-Album, you agree that you have read, understood, and agree to be bound by and comply with these Terms of Service, including any changes made to these Terms of Service by us from time to time. You agree that you will not use the Service if, at any time, you do not agree to these Terms of Service.
- Age Requirement. You guarantee that you are either older than 18 years of age or, if you are between the ages of 13 and 17, you have obtained the consent of your parents or legal guardian, and are able and competent to give us rights as detailed in these Terms of Service, and to comply with these Terms of Service. The Service is not intended for children under the age of 13 and in no event shall any child under the age of 13 use the Service.
- You Promise You Have Authority to Act for Group. If you are using or opening an account on behalf of other persons (such as members of a performing group or band other than you, or a company, entity, or organization), then you promise to us that you have the authority to do so and bind those other persons.
- You Are Responsible For Your Login Information. As a registered user of the Service, you will set-up and maintain your own login information, such as a username and password. Please remember that your account is personal to you and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs on your account, you should take special care to preserve the confidentiality of your username and password. You agree to notify us immediately if you suspect someone else of taking your login information without your permission by sending an e-mail to email@example.com. You will be solely responsible for anything that happens to us or the Service due to any unauthorized use of your account that takes place prior to notifying us that your account has been compromised.
- You Are Responsible For Your V-Album Web Page. When you create and publish your Artist V-Album for sale, we will give you a web page on our Retail Site that is unique to your Artist V-Album ("V-Album Page") and that you can post as a link on your own artist website, your social networks (e.g. Facebook, Twitter) and such other locations on the Internet where you are allowed to share or post links. You will be solely responsible and liable for the use of your V-Album Page. We will maintain ownership of the V-Album Page and grant you a limited, non-exclusive, non-sublicensable, non-transferable, freely revocable, license to use the V-Album Page solely as contemplated herein.
- Creating An Artist V-Album. The Service allows you to create one or more Artist V-Albums for your personal use, or to publish one or more Artist V-Albums for sale through the Retail Site.
- Service Is For Limited Use Only. We grant to you a limited license to use the Service solely to enable you to create, build and/or publish for sale one or more Artist V-Albums. You will not use (e.g. copy or distribute) any part of the Service, including any materials obtained from the Service, in any other manner without our prior written authorization, or unless such use is expressly permitted by us as a part of the offerings on the Service.
- Other Terms That Govern Your Use of Service. You understand that there are other terms and policies that supplement these Terms of Service and you agree that you will comply with them as well. These additional terms and policies are a part of these Terms of Service so that, together, they make one entire agreement that you are agreeing to. Unless we say otherwise, if there are additional terms or policies that conflict with language that is contained in these Terms of Service, then those additional terms and policies are the terms that you will need to abide by. Additional terms and policies include:
- V-Album Software Licenses. Our V-Album Software License Agreement and any other software license agreement we may establish (collectively, the "Software License") covers the software contained in the Services which you may use in connection with the Services.
- Technical Policies. We may establish technical policies and limits concerning use of the Service, including, without limitation, the maximum number of days that your Artist V-Album will be retained, the maximum number of and size of your Artist V-Album files, the maximum disk space allotted to your Artist V-Album, the maximum storage and bandwidth used by your Artist V-Album, how long inactive user accounts will be retained, and the maximum CPU power used by your Artist V-Album.
- Billing and Refund Policies. We may establish policies describing how we bill and/or offer and process refunds for certain products and services offered through the Service. These policies would supplement the general terms that are found in these Terms of Service regarding billing and refund policies.
- Certain Product or Service Offerings. From time to time, we may introduce certain products or services to the Service which may be governed by additional terms and conditions that we may require you to agree to prior to accessing them.
- U.S.-Based Service. The Service is controlled and offered by us from our facilities in the United States. We make no promise to you that the Service is appropriate or available for use in other locations. You will not access the Service from territories where any content or features that are available on or through the Service is illegal. If you do so anyway, it is at your own risk.
- V-Album Setup Fee. In order to publish for sale any Artist V-Album you have created, you must pay the applicable setup fee ("Setup Fee") in the amount detailed in the V-Album Creator publishing process. Note that we may change the Setup Fee and/or add additional fees from time to time in our sole discretion without liability to you, and those changes will be effective immediately upon posting through the Service. Any changes for the Setup Fee will follow the procedures described in Section 11 ("Changes To These Terms Of Service"), below. All fees are in U.S. Dollars. If you elect to make any changes or edits to your Artist V-Album after you have published same, and wish to re-publish such edited Artist V-Album, we may charge you an additional re-publication fee in the amount detailed in the V-Album Creator publishing process.
- Payment. You are responsible for paying the Setup Fee and any additional fees and applicable taxes associated with the Service in a timely manner with a valid payment method. You authorize us, or our third party payment providers, to charge your PayPal account (the "Payment Method") for all charges to your accounts with us. Your Payment Method will be charged the current Set-Up Fee on the date that you click on the "pay now" button in the V-Album Creator publishing process. If your Payment Method fails or your account is past due, (i) you agree to pay all amounts due on your account upon demand, (ii) we may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (iii) we reserve the right to either suspend or terminate your account with us, including deletion of your Artist V-Album from the Service. Except as may be set forth in any applicable billing or refund policies, any fees charged to your account are non-refundable. You agree to submit any disputes regarding any charge to your account in writing to us at firstname.lastname@example.org within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at our sole discretion.
- SALES OF ARTIST V-ALBUMS.
- You Appoint Us As Exclusive Seller of Artist V-Albums. You appoint us as your exclusive, worldwide seller of each of your Artist V-Albums through the Retail Site, which includes the right to fulfill orders and deliver Artist V-Albums to end users.
- Artist V-Album Upload and Pricing. You will upload to the Service each Artist V-Album that you want us to offer for sale through the Retail Site in accordance with, and subject to, the applicable instructions on the Service. We may, in our sole discretion, determine whether your Artist V-Album (including any of the content contained therein) complies with such instructions and is satisfactory for sale. You will be able to select the retail price for each Artist V-Album you choose to sell through the Retail Site, provided that the retail price you select is at least as much as the minimum retail price we have implemented. You may change the retail price after you have published your V-Album, provided it is understood that any such change will require a re-publication of your V-Album which shall be subject to any applicable re-publication fees.
- Your Share of Revenue. For each valid purchase of your Artist V-Album by an end user that is not returned, we will pay you an amount equal to the retail price you have designated for your Artist V-Album, less our V-Album licensing fee and any costs incurred by us in connection with such sale, including, the following transaction expenses: (i) excise, sales, value-added or similar taxes, (ii) credit card and other payment processing costs (e.g., PayPal), (iii) returns, refunds and/or credits, (iv) storage and delivery costs, and (v) any international taxes, where applicable. You acknowledge and agree that the sale of Artist V-Albums is speculative and nothing under these Terms of Service acts as a guaranty by us that our offering of Artist V-Albums shall generate any compensation to you. All fees are subject to be changed by us at anytime.
- How We Account To You. If you earn less than the dollar amount of the payment threshold that we may designate from time to time ("Payment Threshold") (currently, the minimum amount is Fifty Dollars ($50)), then the amount of such compensation will not be paid, but will accumulate in your account until such time as it becomes equal to or greater than the Payment Threshold or the end of the then-current calendar year, whichever occurs first. We will make a payment to you via your PayPal account or such other payment method that we may utilize in our discretion from time to time, for the amount of such compensation, no later than 60 days after date when the foregoing payment requirements are met. Currently, we only compensate users through payments to PayPal accounts. In order for you to receive payments from us, if any, you must have a valid PayPal account.
- Your Responsibilities. You will be solely responsible for the creation of each Artist V-Album that you upload to the Service, and will pay all costs associated with the creation and sale of each Artist V-Album. These costs include: (i) compensation due to artists, authors, co-authors, copyright owners and co-owners, producers and any other record royalty participants from sales or other uses of each Artist V-Album (for example, you must pay other members in your band or group who are entitled to share of revenues paid to you and you must pay all mechanical copyright royalties due to the owners of any musical composition used in your Artist V-Album); (ii) payments required by any agreement between you and any labor organization (such as unions or guilds); (iii) all studio, tape, editing, mixing, re-mixing, mastering and engineering costs; (iv) all costs of travel, per diems, facilities and equipment, and similar expenses and (v) any federal, state, or local taxes imposed on compensation paid to you from the sale of each Artist V-Album.
- Our Content. The technology platform, web tools, applications, content, visual interfaces, interactive features, information, graphics, design, artwork, photographs, images, screen shots, text, music, digitally downloadable or streamable files, video clips, trademarks, logos, product and character names, slogans, computer code, products, software, services, the compilation of the foregoing, and all other elements of the Service that are provided by us or our partners in connection with the Service ("Our Content"), are valuable proprietary and intellectual property of us or our partners. Our Content is protected by all laws and regulations relating to intellectual or proprietary property, such as, for example patent, copyright, trademark and trade secret. You agree not to use Our Content in any manner (e.g. reproduce, distribute, display, publicly perform, revise, create derivatives of, copy, publish, sell, license, or edit) unless we expressly permit that use as a part of the offerings on the Service. Any attempt to use Our Content in violation of our rights or the rights of others is strictly prohibited. Although we make efforts to insure that all material on the Service is correct, accuracy cannot be, and is not, guaranteed.
- Submitting Your Content. By creating your Artist V-Album, you will have the ability to publish, post, or upload materials, including musical recordings, images, photographs, artwork, videos, text, weblinks, information, design, trademarks, logos, graphics, and other materials owned or controlled by you ("Your Content"). All of Your Content shall be subject to these Terms of Service, including the following rules under the "Submission Rules" paragraph below.
- You License Your Content To Us. By providing Your Content through the Service, you are automatically giving us a limited, non-exclusive (meaning that you are free to license Your Content to anyone else in addition to us as long as you do not give them an exclusive license or ownership), sub-licensable (so that we can use our affiliates, partners and other subcontractors such as Internet content delivery networks and wireless carriers to provide the Service), worldwide (because the Internet and the Service are global in reach), fully-paid and royalty-free (meaning that, except as specifically provided in these Terms of Service, we are not required to pay you or anyone else any money for use of the Your Content) license to use, modify (every effort will be made to preserve the integrity of Your Content, but occasionally a technical modification such as compressing the file is necessary), publicly perform, publicly display (for editorial or promotional purposes), reproduce, and distribute Your Content on or through the Service, including to promote and market the Service and our business, generally, without the requirement to seek your permission or permission of anyone else. For the avoidance of doubt, we will not use Your Content for any out-of-context marketing or promotion purposes. Your license to us will last as long as Your Content is available on or through the Service until you terminate your account or remove any particular item of Your Content by following the termination or removal procedures described elsewhere in these Terms of Service.
- You Still Own Your Content And May Continue To Use It. As between you and us, you retain all of your rights in Your Content that you upload within your Artist V-Album or the Service and which do not incorporate any of Our Content. Additionally, as mentioned above, our right to use Your Content is non-exclusive. That means that after posting Your Content on the Service via your Artist V-Album, you continue to have the right to use and allow others to use Your Content in any way you choose. However, please be reminded that you will not be able to give another person or entity exclusive rights or ownership to Your Content while it is under license to us unless that person or entity makes an exception for us.
- Removal Of Your Content. We may, at any time and without notice to you, delete any of Your Content that, in our sole judgment, violates these Terms of Service or otherwise disable access to the Artist V-Album which contains such infringing content. You may also remove any of Your Content submitted or posted by you to your account at any time by sending an email notification with such request to email@example.com or logging in to your account with us and using the edit/delete prompts in the V-Album Creator for the particular content you wish to change. We will remove items of Your Content as soon as we can following our receipt of your email request.
- Your Content Will Not Contain Anything Illegal or Abusive. You understand that you are responsible for all aspects of Your Content, and you agree not to post in Your Content anything that is unlawful, harmful, defamatory, libelous, obscene, invasive of the privacy of another person or entity, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent, or otherwise objectionable or inappropriate as may be determined by us in our sole discretion. Please exercise good judgment in uploading Your Content so that we do not have to resort to removing such postings or terminating your account with us, which we may do in our sole discretion.
- Your Content Will Not Violate Third Party Rights. You agree that Your Content will not contain personal information about any individual other than yourself, violate the privacy/publicity of any other individual or entity, or contain anything that you are under a contractual obligation to keep private or confidential. You agree that you will not impersonate any person or organization, including, for example, people who work for us or other artists or persons who use the Service. You further agree that you will not say you are affiliated with another person or organization when you are not. Nor will Your Content contain any untrue comments about other people or entities that defames their reputation, or that infringes any copyright, trademark, patent, trade secret or other intellectual property right of any other person or entity.
- Your Content Will Not Contain Commercial Solicitations. You agree that Your Content will not contain any business or commercial solicitations (other than, of course, with regard to you as an artist and your products).
- Your Content Will Not Contain any Viruses, Corrupting Files or Interference. You agree that you will not post and Your Content will not contain any software, files or links to other websites, and that Your Content does not and will not contain any viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Service. You also agree that you will not modify in any way any specifications, technology or application codes provided to you by us or as embedded in Your Content unless we agree in advance that you can do that.
- You Will Not Share Registration or Account Information. You may not share or transfer password or other access information with any other party, temporarily or permanently. As mentioned above, you shall be solely responsible for all use of your account and for the confidentiality of your password.
- You are Responsible for Your Content. You understand that you are solely responsible for Your Content and the consequences of posting or publishing any of it, and that we are not responsible in any way for the information, data, text or other materials that may appear in any of Your Content. We do not endorse and have no control over any of Your Content. Your Content is not necessarily reviewed by us prior to posting or monitored by us after posting (nor are we obligated to do so) and we make no promises or guarantees of any kind as to any of Your Content. You agree that you must evaluate, and bear all risks associated with the use of any of Your Content.
- Your Content Will Be Made Public. You understand that you are publishing your Artist V-Album for sale to the general public and, accordingly, Your Content will be made public.
- Your Promises to Us for Your Content. In connection with your posting of any of Your Content, you promise to us that:
- You own, or have the necessary licenses, rights, consents, and permissions to use and sell and authorize us to use all patent, trademark, copyright, or other proprietary rights in and to any and all of Your Content to enable inclusion and use of Your Content in your Artist V-Album and otherwise in the manner contemplated by us under these Terms of Service, and to grant the rights and license described above (this means that, for example, you have not given a third party, such as a record label or a music publisher any rights to your musical works that would prevent you from giving those rights to us); and
- Our use and sale of Your Content will not:
- infringe, violate, or misappropriate any third-party right, including any contractual, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person or entity;
- violate any applicable law, rule or regulation; or
- require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms of Service, including, for example, the payment of any record royalties to any record companies, any mechanical or synchronization royalties to any music publishers, or any public performance royalties to any performing rights organization (e.g., ASCAP, BMI, SESAC), including for any clips or previews of your Artist V-Album.
- Indemnification. You agree to hold us harmless and to pay or reimburse us (and "us" in this Section 7 means our parent, subsidiaries, shareholders, members, managers, affiliates or any related companies, licensors, licensees, suppliers, and our and their respective directors, officers, employees, agents, representatives, and contractors, and end users who purchase your Artist V-Albums) for all losses, damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) of any kind which are in any way related to (a) your use or misuse of the Service; (b) Your Content, including our or any person’s or entity’s use (e.g. reproduction, distribution, public performance, public display, modification, editing, adaptation, or other exploitation) of any of Your Content consistent with these Terms of Service; or (c) your violation of these Terms of Service including if any of your promises to us regarding Your Content are broken. We reserve the right, at your expense, to assume the exclusive defense and control of any matter described in this paragraph and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. We have no obligation whatsoever to pay or reimburse you or any other party for any losses, damages, injuries, liabilities, costs, fees and expenses of any kind which arise in any way related to your use of the Service and you hereby waive and release us from any and all claims against us to the fullest extent permitted by law.
- Service provided to you "as is".
- No Guarantees Made By Us. We make no promise or guarantee about the reliability of the Service, and we will not be liable to you in the event of any failure of the Service. You acknowledge that any reliance on such material and/or systems will be at your own risk. We make no guarantees regarding the amount of time that any of Our Content or Your Content will be preserved. We do not endorse, verify, evaluate or guarantee any information provided by users, including rankings, reviews, or the content of others and nothing shall be considered as an endorsement, verification or guarantee of any ranking, review or Your Content or the content of others.
- Limitation Of Our Liability. The Service is provided on an "as is, as available" basis. No warranties, express or implied, including but not limited to those of merchantability or fitness for a particular purpose, are made with respect to the Service or any information or software therein. Under no circumstances, including negligence, shall we be liable for any direct, indirect, incidental, special, punitive, or consequential damages that result from the use of or inability to use the Service, nor will we be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance whether or not caused by events beyond our reasonable control, including but not limited to acts of God, communications line failure, theft, destruction, or unauthorized access to our records, programs, or services. In no event shall our total liability for all damages, losses, and causes of action exceed five dollars (US $5.00). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages; as a result, the above limitation or exclusion may not apply to you.
- CHANGES TO THESE TERMS OF SERVICE. We may update or modify these Terms of Service at any time without prior notice, and such changes will be effective immediately upon being posted through the Service. These Terms of Service will identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by these Terms of Service as updated. We encourage you to review these Terms of Service from time to time to check for updates.
- AVAILABILITY OF SERVICE. We may make changes to or discontinue any of the features, media, content, communities, products, software, or services available within the Service at any time, and without notice.
- INTERACTION WITH OTHER USERS. Your use of the Service may bring you into contact with other users, and their content. You are solely responsible for your involvement with other users. If you have a dispute with any user(s), you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from all claims and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with any disputes.
- By Us. We may, in our sole discretion and for any reason or no reason, with or without notice, terminate your account, disable your access to the Service, discontinue your Artist V-Album or the Service and any related services including support, or terminate any license granted to you hereunder (including licensed rights to any content or materials downloaded by you during your use of the Service), at any time. You agree that we are not and shall not be liable to you or any third-party for any termination. We do not permit unlawful, infringing, fraudulent, or otherwise illegitimate activities on the Service, and reserve the right to terminate access to the Service, in cases of actual or suspected fraud, or violations of these Terms of Service or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity.
- By You. If you are dissatisfied with the Service, then please let us know by e-mailing us at firstname.lastname@example.org. You may terminate your use of the Service by closing your account, discontinuing your use of any and all parts of the Service, or providing us with notice of termination at email@example.com.
- Certain Terms Still Apply After Termination. Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
- PROCEDURES FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
- Copyright Notices. If you are a copyright owner or a copyright owner’s agent and you believe any content submitted to and hosted on an Artist V-Album or the Service infringes your copyrights, then you may submit a notification by following the rules of the Digital Millennium Copyright Act ("DMCA") which require that you notify our designated copyright agent with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that you claim is infringed;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Service;
- The address, telephone number, and/or electronic mail address at which the complaining party may be contacted;
- A statement that 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
- 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.
- It is our policy to respond to notices of alleged infringement that comply with the DMCA. Accordingly, you understand that if you fail to comply with all of the requirements of the DMCA listed above, your notice may not be valid. We will promptly terminate without notice the accounts of users that are determined by us to be "repeat infringers."
- Our Designated Copyright Agent. Our designated copyright agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Milton E. Olin, Jr., Esq., Altschul & Olin, LLP, 16133 Ventura Boulevard, Encino, CA 91436; phone 818-990-1800; fax 818-990-1429 or by electronic mail at firstname.lastname@example.org. This contact information is only for reporting alleged copyright and other intellectual property infringement claims. Contact information for other matters is provided elsewhere in these Terms of Service or on the Site.
- Other Claims. If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item in an Artist-V-Album or on the Service infringes upon your rights in such intellectually property, you must submit a notification to us in the same manner as provided above in respect of notice of copyright infringement, including providing the same information in writing to the designated Copyright Agent set forth above.
- No False Claims. Please note that under Section 512(f) of the United States Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages.
- No Partnership Formed. Both you and we acknowledge and agree that no partnership or other agency relationship is formed and neither of you nor we have the power or the authority to obligate or bind the other. Neither of you nor we have any fiduciary duties to each other.
- Texas Law Governs. These Terms of Service will be governed by and construed in accordance with the internal laws of the State of Texas without regard to conflicts of laws principles. By using the Service, you hereby agree that any and all disputes regarding these Terms of Service will be subject to the federal, state and local courts located in the County of Lubbock, Texas.
- Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision of these Terms is unlawful, void or unenforceable, that provision is deemed severable from these Terms of Service and does not affect the validity and enforceability of any remaining provisions.
- No Export of Software. Software that may be available in connection with the Service (the "Software") is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
- Headings. The headings in these Terms of Service are for your convenience and reference and do not limit or affect these Terms of Service.