(Updated January 18, 2018)
I. INTRODUCTION, ACCEPTANCE and SUMMARY OF MATERIAL TERMS – READ ENTIRE AGREEMENT CAREFULLY
Welcome to the brass family of websites, products and services (collectively, “Website”) operated by brass|MEDIA Inc. (“brass,” “us,” “we,” or “our”). Our sites and services include moneysideoflife.com, brassmedia.com, teach.moneysideoflife.com, makingfinancepersonal.com, brassmagazine.com, studentprogram.com, By-the-Piece Content Library, brass EXCHANGE, brass HUB, brass MANAGED HUB, brass STUDENT PROGRAM, and brass MAGAZINE but are not limited to these sites and services.
3. brass|MEDIA Inc. Content and services are provided “as is” without warranties of any kind and brass|MEDIA Inc.’s liability to you is limited as detailed in Section VIII and Section IX;
III. VISITORS, USERS & ACCOUNT HOLDERS
B. USER – A USER is an individual who elects to sign-up or register to access products and services not available to a Visitor. If you are under the age of thirteen, then you are not permitted to register as a USER in such a way where you submit personal information unless we receive appropriate consent from a parent or guardian. In some instances, we may provide USERS with the ability to access some features of the Website and submit content and data using an anonymous code provided by the USER’S instructors or under parental approval which maintains USER anonymity.
C. ACCOUNT HOLDER – An Account Holder is anyone seeking to license or purchase brass|MEDIA Inc. products and services. Account Holders must be at least 18 years of age. brass|MEDIA Inc. may require you provide sufficient proof of age or identity. By setting up an account, you verify that you are of age and your country of residence is the same as your billing address.
IV. USER AND ACCOUNT HOLDER WARRANTIES, RESPONSIBILITES AND CONSENT
A. AUTHORITY TO ACT AND ACCURATE INFORMATION – USERS and Account Holders warrant that he or she has provided brass|MEDIA Inc. with accurate, complete, and current information. Further, if a USER or Account Holder is registering or creating an Account on behalf of a business or organization, he or she represents that they have the authority to act on behalf of the business or organization. USERS and Account Holders agree to correct and update information to ensure its accuracy and completeness at all times. Entering false personal or business information, or failing to comply with these Terms of Service, may result in the revocation of the license(s) granted to the USER and Account Holder, as well USER’s or Account Holder’s loss of his or her brass|MEDIA Inc. Account, and any other services or privileges provided by brass|MEDIA Inc.
B. VALID EMAIL AND PASSWORDS – USERS and Account Holders must provide a valid email and create a password to register or create an account (hereafter “Account”). Protection of your username and password combination is the responsibility of the individual. If you elect share your username and password combination, you are solely responsible for the activity that occurs under your registration or Account, whether or not you have authorized the activity. USERS AND Account Holders agree to notify brass|MEDIA Inc. immediately of any unauthorized use of USER’s Account as well as of any other breach of security that may affect brass|MEDIA Inc. brass|MEDIA Inc. does not store passwords created by USERS AND Account Holders. In the event a USER forgets their password; the USER must create a new password according to the directions provided on the Website. An individual USER may only create one brass|MEDIA Inc. Account. This limitation may be waived by brass|MEDIA Inc. in our sole discretion if there is a pressing business or organizational reason for having more than one account. Please contact support at Support@brassmedia.com for more information.
C. ACCESSING SERVICES and ACCOUNTS – You access your services or account through a login process through Internet connected devices. When accessing services or an Account simultaneously through multiple devices or by more than one individual, each device or person may have full view of the products and services or Shopping Cart and the items it contains. If you require additional individuals to be able to access your Account or your business or organization needs multiple accounts, please contact brass|MEDIA Inc. at Support@brassmedia.com with your specific situation. brass|MEDIA Inc. reserves the right to monitor Accounts and to block services or an Account without prior notice to protect against misuse.
E. SALES/USE TAXES – brass|MEDIA Inc. is an Oregon corporation and as such resides in a non-sales and use tax state. State and local tax regulations vary significantly and brass|MEDIA Inc. strives to comply with all regulations. The fees and amounts set forth for any products, services or Content licensed or otherwise provided by us, do not reflect or include any state or local sales, use or other excise taxes of any kind unless clearly stated on an invoice to a USER/Account Holder.
1. USER/ACCOUNT HOLDER RESPONSIBLE FOR ALL SALES AND USE TAXES – All sales, use and/or other excise taxes applicable to or imposed on any products and services provided by brass|MEDIA Inc. to USER/Account Holders shall be the sole and exclusive obligation of USER/Account Holder. Failure of brass|MEDIA Inc. to collect state or local sales, use or other excise taxes of any kind does not eliminate the USER’s/Account Holder’s obligation to report and remit such taxes on their own accord to those bodies authorized to levy such taxes.
2. USER/ACCOUNT HOLDER INDEMNIFICATION TO BRASS|MEDIA INC. – USER/Account Holder agrees to indemnify and hold brass|MEDIA Inc. harmless from any and all of such taxes, and any and all penalties or interest that may be imposed in connection therewith. USER/Account Holder acknowledges and agrees that if brass|MEDIA Inc. becomes obligated to collect any sales, use or other excise taxes, including penalties in connection with the sale of the products and services, USER/Account Holder shall pay all such amounts, within thirty (30) days of invoice if invoiced separately from the fees and amounts for products and services subject to such tax, and otherwise with the payment for such products and services, in addition to any amounts otherwise payable hereunder.
3. TERMINATION OF USE DOES NOT ELIMINATE TAX OBLIGATIONS – USER/Account Holder further acknowledges that the termination of this Agreement or failure of brass|MEDIA Inc. to collect state or local sales, use or other excise taxes of any kind does not eliminate USER/Account Holder’s obligation to comply with state and/or local tax obligations for past products and services provided by brass|MEDIA Inc. and agrees to pay all taxes and penalties if we become obligated to collect any taxes for USER/Account Holder’s state and/or local taxing authorities. Obligations under this Section IV shall survive any reorganization, merger, consolidation or similar business combination involving USER/Account Holder, including but not limited to bankruptcy, a change of control, the sale or lease of all or substantially all of USER/Account Holder’s assets, or any other assignment or transfer (whether by operation of law or otherwise).
4. TAX EXEMPTION – Under certain circumstances, USER/Account Holder may have exemption from particular federal, state and/or local taxes. For an exemption to apply, USER/Account Holder must provide brass|MEDIA Inc. with official state and/or federal exemption documentation. USER/Account Holder agrees to notify brass|MEDIA Inc. in writing within a reasonable time of any change in the exemption status as provided.
F. USER/ACCOUNT HOLDER CONTENT – Certain features of brass|MEDIA Inc. services may permit USERS/Account Holders to upload user generated content to the brass|MEDIA Inc. services, including but not limited to text, video, images, photos, data and other type of works (“User Content”) and to publish User Content on through brass|MEDIA Inc. services.
1. COPYRIGHT RETENTION – You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the brass|MEDIA Inc. services.
2. LICENSE TO DISTRUBUTE USER CONTENT – By posting or publishing User Content, you grant brass|MEDIA Inc. a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any and all media or distribution methods (now known or later developed) in accordance with your account and the features of the brass|MEDIA Inc. service you elect to utilize.
3. LIMITED LICENSE GRANT TO OTHER USERS – By posting or sharing User Content with other users of the brass|MEDIA Inc. Services, you grant those users a non-exclusive license to access and use that User Content as permitted by this User Agreement and the functionality of the brass|MEDIA Inc. services.
4. USER CONTENT, DATA RESTRICTION AND RETENTION – You acknowledge that brass|MEDIA Inc. services are not intended for the storage or processing of Social Security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information, health insurance information, sensitive data about personal characteristics or other personal data that may pose a risk of harm to the individual if improperly disclosed (collectively, “Sensitive Personal Information”). You agree not to upload or otherwise submit any Sensitive Personal Information to brass|MEDIA Inc. in connection with the brass|MEDIA Inc. services. You agree that brass|MEDIA Inc. will have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the brass|MEDIA Inc. service. brass|MEDIA Inc. is not responsible for performing, and is not liable for any failure to perform, any back-up of any User Content provided, processed, or stored in or through the brass|MEDIA Inc. services. brass|MEDIA Inc. recommends that you perform regular exports and back-ups of your User Content. Upon deactivation of an account, all User Content associated with that account will be deleted.
5. USER CONTENT REPRESENTATIONS AND WARRANTIES – You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
7. PUBLICITY – If you are an entity or organization, you agree that brass|MEDIA Inc. may list your entity or organization as a customer of brass|MEDIA Inc. and use your entity or organization name and logo for marketing or promotional purposes and in other communication with existing or potential brass|MEDIA Inc. customers, resellers, or investors. You may revoke this consent at any time by sending an email to Support@brassmedia.com.
1. Remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Website or Website Content;
2. Circumvent, disable or otherwise interfere with security-related features of the Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
3. Use an automatic device (such as a bot or spider) or manual process to copy or “scrape” the Website or Website Content for any purpose without our express written permission. Notwithstanding the foregoing, we grant public search engine operators permission to use automatic devices (such as bots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
4. Download any file that you know, or reasonably should know, cannot be legally distributed;
5. Collect or harvest any personally identifiable information from the Website including, without limitation, user names, passwords, email addresses;
6. Solicit other Visitors, USERS or Account Holders to join or become members of any commercial online service or other organization without our prior written approval;
7. Attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same;
8. Engage in any commercial purpose, including, but not limited to, advertising or offering to sell any goods or services;
9. Reproduce, duplicate, copy, sell, resell, distribute, publish or exploit for any commercial purpose the software, products or services provided by brass|MEDIA, Inc. or obtained from the Website without obtaining the express, prior written consent of brass|MEDIA Inc. (this restriction includes any attempt to incorporate any information from the services into any other directory, product, or service)
10. Decompile, reverse engineer, or disassemble any portion of any the Website;
11. Use network-monitoring software to determine architecture of or extract usage data from the Website;
12. Encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Account (as defined in Section IV) without permission, etc.);
13. Violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
14. Engage in any conduct that restricts or inhibits any other user from using or enjoying the Website.
V. CONTROL OF OPERATIONS
A. ADD, MODIFY OR REMOVE CONTENT OR SERVICES – brass|MEDIA Inc., in its sole discretion, may add, modify or remove without notice, any services or Content contained on the Website including those appearing to infringe the intellectual property rights of other entities.
B. SERVICE PRICING – brass|MEDIA Inc., in its sole discretion may change prices for services at any time without notice.
C. RESTRICTING ACCESS – brass|MEDIA Inc. reserves the right, but does not assume the responsibility, to restrict conduct which brass|MEDIA Inc. deems in its discretion to be harmful to individual users, damaging to the communities that use brass|MEDIA Inc., or in violation of brass|MEDIA Inc.’s or any third party’s rights.
VI. INTELLECTUAL PROPERTY
B. CONTENT – We provide the Website including, Content, but not limited to all text, illustrations, files, images, photos, software, scripts, graphics, sounds, music, videos, footage, information, materials, lesson plans, products services, URL’s, technology, documentation and interactive features (hereinafter, “Content”) for educational, entertainment, and promotional purposes only. You may not rely on any information and opinions expressed on any of our Websites or in any of our Content for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of the Website and Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Content. Without limiting the foregoing, you agree that your use of the Website and Content are provided for general educational purposes and are neither an offer of service nor a recommendation of specific financial, retirement, tax, business, legal, or estate planning advice or similarly related services to any particular individual, or for any particular organization. Access to and use of Website and Content in no way shall be implied or construed to create any relationship between you or brass|MEDIA Inc. (or its directors, officers, employees or agents), including without limitation, client-financial planner, client-investment advisor or attorney-client relationship. Further, you understand and acknowledge that brass|MEDIA Inc. does not guarantee or assume responsibility for the accuracy, reliability, completeness or timeliness of this information, or that this information complies with all federal laws, the laws of all states and territories, or the laws of any other jurisdiction, and you understand and acknowledge and agree that it is not the intention of brass|MEDIA Inc. to provide specific financial planning, tax or legal advice for particular individuals, but rather to provide general information to enable better understanding of personal finance and investment issues.
C. THIRD PARTY CONTENT AND LINKS – In some instances, Content may include material posted by a third party or will represent the opinions and judgments of a third party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Website by anyone other than authorized employees or spokespersons while acting in their official capacities. The Website may contain links to other sites and resources maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third party links. We are not responsible for any content posted on third party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third party or their sites or resources. If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release brass|MEDIA Inc. its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
D. HEALTH-RELATED CONTENT – Any health-related content or information that may be available through our Websites is not intended to be construed as medical advice or a substitute for professional medical advice. We do not endorse or warrant the validity of any such health-related statements found on this Website or in any in third party sites referenced in the Website. This information should be treated as general in nature which may be helpful to some persons but not others, depending upon their personal medical needs. You should always consult with your physician prior to changing or undertaking a new diet or exercise program. Never disregard professional medical advice or delay in seeking it because of something you have read on the Website.
brass|MEDIA Inc. expressly disclaims all warranties and conditions of any kind, either express or implied, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third party rights, and those arising from a course of dealing or usage of trade.
A. USE SITE AT YOUR OWN RISK – YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE AND CONTENT IS AT YOUR SOLE RISK. THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, BRASS|MEDIA INC. AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY:
1. WARRANTIES THAT THE WEBSITE OR CONTENT WILL MEET YOUR REQUIREMENTS;
2. WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, RELIABILITY OR INFORMATIONAL CONTENT OF THE WEBSITE OR CONTENT. While brass|MEDIA Inc. uses commercially reasonable efforts to ensure the accuracy of keywords and descriptions, as well as the integrity of our Content, brass|MEDIA Inc. makes no warranties and/or representations regarding such keywords, descriptions or Editorial Content integrity;
3. WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE;
4. WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE;
5. WARRANTIES THAT YOUR USE OF THE WEBSITE OR CONTENT WILL BE SECURE, UNINTERRUPTED OR ERROR FREE;
6. WARRANTIES THAT ERRORS IN THE WEBSITE, CONTENT OR SOFTWARE WILL BE CORRECTED;
7. WARRANTIES with respect to any related software or hardware used or provided by brass|MEDIA Inc. Any patent, copyright, trademark, trade secret or warranty issues, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product.
8. WARRANTIES FOR any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through brass|MEDIA Inc., its licensors, and subcontractors;
9. WarrantIES with respect to any legal advice or information regarding proper legal use of THE WEBSITE OR any Content or PHOTO IMAGES. users AND Account Holders are responsible for consulting their own legal services or attorneys to determine the fitness of THE WEBSITE, Content and/or PHOTO IMAGES for particular purposes. usER AND Account Holder agrees to hold brass|MEDIA Inc. harmless from any claims related to Account Holder’s usage of THE WEBSITE, Content and/or PHOTO Images.
10. warranties OR grants no rights and makes no representations with respect to the use of any names, trademarks, service mark, logotypes, copyrighted designs or works of art or architecture depicted in THE WEBSITE OR IN ANY Content. It is your responsibility to assure that all necessary rights, consents, or permissions that may be required for your use of THE WEBSITE AND any Content are obtained.
IX. LIMITATION OF LIABILITY
C. FULLEST EXTENT PERMITTED – In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
X. COPYRIGHT AND DMCA POLICY
A. RESPECTING INTELLECTUAL PROPERTY RIGHTS – We respect the intellectual property rights of others and expect anyone using the Website and Content to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the access to the Website, Content and to Accounts of USERS and Account Holders suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to Content or material on any of our Websites or hosted on our systems that may be infringing or the subject of infringing activity.
B. DMCA – In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
5060 SW Philomath Blvd #374
Corvallis, OR 97333
If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7. We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
XI. CHOICE OF LAW; JURISDICTION AND VENUE
A. U.S. BASED – brass|MEDIA Inc. controls and operates the Website and its services from its headquarters in the United States and makes no representation that the Website or Content is appropriate or available for use in other locations. If you use the Service from other locations, you are responsible for compliance with applicable local laws, including, but not limited to, export and import regulations of other countries. Unless otherwise explicitly stated, all marketing or promotional materials found on the Website are solely directed to individuals, companies, or other entities located in the United States. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this agreement. You agree that service of process in any actions, controversies and disputes arising from or relating to this Agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
XII. DISPUTE RESOLUTION & MANDATORY ARBITRATION
A. COOPERATIVE RESOLUTION – Expressly excluding any claim by brass|MEDIA Inc. regarding your indemnification obligations, your breach of these Terms and Conditions, or your breach of a subscription agreement, we each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at: 5060 SW Philomath Blvd #374 Corvallis, OR 97333. We will contact you based on the contact information you have provided us or that we obtain by other means.
1. INITIAL RESOLUTION PERIOD – If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this Section XII. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
2. ARBITRATION – We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by confidential binding arbitration administered in the State of Oregon, Benton County. If you and brass|MEDIA Inc. cannot agree on arbitrators, they shall be appointed by the Presiding Judge of the Benton County Superior Court. The arbitration shall be conducted under the then prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA”). You and brass|MEDIA Inc. may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator. The arbitration award shall be binding and may be entered as a judgment in any court of competent jurisdiction. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby excluded. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other current or former user of brass|MEDIA Inc. services.
3. FEDERAL ARBITRATION ACT – We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
4. Exception to Arbitrate – Either of us may bring qualifying claims in small claims court. Further, pursuant to this Section XII, we each agree that any arbitration will be solely between you and brass|MEDIA, Inc., not as part of a class wide claim (i.e., not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction in this Section XII is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the class wide dispute must be brought in court.
B. NO CLASS ACTIONS – TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
C. NO TRIAL BY JURY – TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
A. WAIVER AND SUBSEQUENT BREACH OR DEFAULT – No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
CONTENT BY-THE-PIECE USER AGREEMENT
(Effective January 1, 2017)
XV. CONTENT BY-THE-PIECE USEAGE AGEEMENT
The terms in this Section XV apply to brass|MEDIA Inc. USERS and Account Holders who activate services or an Account to access Content By-The-Piece. Content By-The-Piece is a service where Account Holders pay for the rights to utilize brass|MEDIA Inc. owned Content for USER/Account Holder’s educational and marketing purposes. The Content By-The-Piece Usage Agreement is a legal licensing agreement (the “Agreement”) between you or the employer or other entity on whose behalf you are entering into this Agreement (“you”) and brass|MEDIA Inc. (“brass|MEDIA Inc.”). Please read this Agreement carefully before using any services or downloading any brass|MEDIA Inc. Content.
A. USE – For purposes of this Agreement, “use” means to download, copy, reproduce, modify, edit, display, broadcast, publish or otherwise make use of. Use does have restrictions which you are obligated to understand and follow. Permitted Uses and Restrictions are outlined in this Agreement in Section XXI, Section XXII and Section XXIII.
B. PERPETUAL – The rights granted are perpetual in nature, meaning there is no expiration or end date on your rights to use the Content obtained through the By-The-Piece service unless you fail to uphold this Agreement. In the event, in brass|MEDIA Inc.’s sole discretion, you violate, breach or otherwise fail to adhere to the Agreement, brass|MEDIA Inc. may terminate your Account and access to Content as detailed in Section XVIII of this Agreement.
C. NON_EXCLUSIVE – Content made available through the By-The-Piece service is non-exclusive, meaning that you do not have exclusive rights to use the Content. brass|MEDIA Inc. can license the same Content to other customers.
To access Content By-The-Piece a USER must create an account (hereinafter “Account”)
A. ACCESSING Account Details – To view the specific details of your account, go to: http://www.moneysideoflife.com/my-account. You agree to not in any way impersonate another person or act in a manner which may cause others to confuse you with another party. Further, you agree to not engage in any behavior towards brass|MEDIA Inc., brass|MEDIA Inc. employees, brass|MEDIA Inc. Contributors, or in connection with any Content which brass|MEDIA Inc., in its discretion, deems vulgar or otherwise offensive.
B. Special Promotions and Free Samples – brass|MEDIA Inc. periodically offers a number of special promotional plans, with different limitations. brass|MEDIA Inc. reserves the right to modify, terminate or otherwise amend our offered special promotional plans. When you set up your brass|MEDIA Inc. Account you may be given a free sample (hereafter “Sample”). If your brass|MEDIA Inc. Account opens with a Sample, you many not combine the Sample with any other special offer(s) or promotion(s) from brass|MEDIA Inc. brass|MEDIA Inc. is not obligated to offer a Sample. You must have Internet access and a current valid accepted payment method as indicated during the account sign-up (“Payment Method”) to take advantage of the Sample. You are not eligible to receive a Sample if: (i) you have previously used a Free Sample; (ii) been a previous brass|MEDIA Inc. Account holder within the preceding 12 months; or (iii) your Payment Method or email address has previously been associated with a brass|MEDIA Inc. Account. After a Sample has been used, brass|MEDIA Inc. will bill your Account for purchases as they are made by you and according to your Payment Method for Content purchases.
C. AUTHORIZATION TO BILL – By setting up an Account, you are expressly agreeing that brass|MEDIA Inc. is authorized to charge you for purchases you make during the use of the Website. As used in these Terms of Service, “billing” shall indicate a charge or debit, as applicable, against your Payment Method. brass|MEDIA Inc. shall be under no obligation to refund any fees under any circumstances. However, in the event that brass|MEDIA Inc., in its sole discretion, determines that you are entitled to a refund of all or part of a purchase, such refund shall only be made to the credit card account originally used by you or returned to the designated billing authority. In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting brass|MEDIA Inc., brass|MEDIA Inc. will promptly file a complaint with www.ic3.gov, the Internet Crime Complaint Center, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center.
XVII. REFUND POLICY AND CREDITS
A. CREDITS PURCHASED DO NOT EXPIRE – Credits purchased to access Content from the Website have no expiration on active Accounts. Accounts that are not accessed (logged into) for more than one year may be deemed terminated at the discretion of brass|MEDIA Inc.
B. REFUNDS – brass|MEDIA Inc. shall be under no obligation to refund the cost of a purchase. However, in the event that brass|MEDIA Inc. determines that you are entitled to a refund of all or part of your purchase price, such refund shall only be made to the credit card account originally used by you or to the authority which made the payment for the subject purchase. If your payment was made by check, your refund will be made by check.
C. CREDITS ARE NOT TRANSFERABLE – Credits purchase under an Account may not be used by or transferred to a different Account.
XVIII. Closing or Terminating Accounts
A. CLOSE AT ANY TIME – You may close your Account at any time.
1. upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings, by or against you;
2. upon you making an assignment for the benefit of creditors; or
3. upon the dissolution of any entity on whose behalf you entered into this Agreement, or at the moment such entity ceases to do business. brass|MEDIA Inc. shall not consent to any assumption or assignment of the rights granted hereunder in the event of any of the preceding.
E. USER BREACH – In the event that you breach any of the terms of this or any other agreement with brass|MEDIA Inc., brass|MEDIA Inc. shall have the right to terminate your account without further notice. Such termination shall be in addition to brass|MEDIA Inc.’s other rights at law and/or equity. brass|MEDIA Inc. shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of any such breach or breaches.
XIX. OWNERSHIP AND COPYRIGHT
A. CONTENT PROTECTED BY COPYRIGHT – All Content on the brass|MEDIA Inc. Website(s) is protected by United States and international copyright laws and treaties. brass|MEDIA Inc., various contributors (“Contributors”), or third party providers who provide Content to brass|MEDIA Inc. own all rights, including the copyrights in and to the Content. brass|MEDIA Inc., its Contributors and third party provides reserve all rights in and to the Content not expressly granted to you by the terms of this Agreement. Your rights to use any Content are subject to this Agreement and are conditioned upon your payment to brass|MEDIA Inc. for your use of the applicable Content. If you fail to make any payment to brass|MEDIA Inc. when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed to be delinquent. If your account becomes delinquent, your right to use any Content downloaded at any time shall automatically terminate unless all payments together with any interest thereon and brass|MEDIA Inc.’s costs of collection, bank charges and credit card processing fees are received by brass|MEDIA Inc. no later than fifteen (15) days from the date that your account became delinquent.
B. THIRD PARTY RIGHTS – BRASS|MEDIA INC. CONTENT MAY INCLUDE THIRD PARTY CREATIVE ELEMENTS, TEXT-BASED, PHOTOS, GRAPHICS, FOOTAGE OR OTHERWISE, WHICH MAY BE PROTECTED BY COPYRIGHT OR TRADEMARK LAWS BY THEIR RESPECTIVE OWNERS.
A. USED WITH PERMISSION ATTRIBUTION FOR CONTENT – Credit attribution for brass|MEDIA Inc. owned Content is not necessary. If brass|MEDIA Inc. Content is used as-is, in its entirety, as downloaded with no modifications, USER/Account Holder may at their discretion provide acknowledgement or attribution to brass|MEDIA Inc. in the following manner:
“© brass|MEDIA Inc. 2016. Used with Permission.” In the event that any Content is used in connection with a film, television broadcast, documentary or other audio-video or multimedia project, using reasonable commercial efforts to accord the brass|MEDIA Inc. as the creator of any Content used is appreciated but not required.
You are licensed to:
1. To publish the Content.
2. To use the Content for marketing and educational purposes.
B. ATTRIBUTION FOR THIRD PARTY ELEMENTS – Credit attribution for third party elements not created or owned brass|MEDIA Inc. may require attribution or copyright notice. When used by brass|MEDIA Inc., we include the attribution for each third-party element. This information was believed to be accurate only at the time of indexing, and we provide no guarantee that at the time of use information is correct. It is the responsibility of the user, before making use of any third-party elements, to check the license there applied, and comply with all of the proper use requirements.
C. UNINTENTIONAL OMISSION – The unintentional omission of the aforesaid credit will not be a breach of the terms hereof provided that you cure such omission following email notice from brass|MEDIA Inc.
XXI. IMAGES AND PHOTOS ASSOCIATED WITH BY-THE-PIECE CONTENT
A. PHOTOS OWNED BY THIRD-PARTY PROVIDERS – PHOTOS ACCOMPANYING BY-THE-PIECE CONTENT ARE OWNED BY THIRD PARTY PROVIDERS. BRASS|MEDIA INC. DOES NOT OWN THE PHOTOS AND MAKES NO CLAIM TO THEIR OWNERSHIP. WE PROVIDE THE IMAGES AND PHOTOS AS A CONVENIENCE TO THE USER/ACCOUNT HOLDER TO ADD VISUAL APPEAL TO THE CONTENT.
B. PHOTO SOURCING – WE SOURCE IMAGES AND PHOTOS THAT ARE IDENTIFIED AS BEING AVAILABLE IN THE PUBLIC DOMAIN OR CARRY THE “CC0” (CREATIVE COMMONS “NO RIGHTS RESERVED” MARK. (INFORMATION ABOUT CC0 IS AVAILABLE BY FOLLOWING THE LINK: https://creativecommons.org/share-your-work/public-domain/cc0/.) BRASS|MEDIA INC. IS NOT REQUIRED NOR IS RESPONSIBLE FOR VERIFYING THE AUTHENTICITY THAT EACH PHOTO IT ASSOCIATES WITH BY-THE-PIECE CONTENT IS IN THE PUBLIC DOMAIN OR IS, IN FACT, LICENSED UNDER THE CC0 DESIGNATION.
C.USE AT YOUR OWN RISK – BY USING ANY OF THE PHOTOS ASSOCIATED WITH THE BY-THE-PIECE CONTENT, THE USER(S)/ACCOUNT HOLDER(S) AGREES THAT THE USER(S)/ACCOUNT HOLDER(S) IS ASSUMING THE RESPONSIBILITY AND LIABILITY OF COMPLYING WITH THE PROPER USE OF THE IMAGES AND PHOTOS AND IS USING THE PHOTO(S) AT THEIR OWN RISK. USER(S)/ACCOUNT HOLDER(S) INDEMNIFIES AND HOLDS BRASS|MEDIA INC. HARMLESS FOR ANY USE OF THE IMAGE(S) OR PHOTO(S) BY THE USER(S)/ACCOUNT HOLDER(S). FURTHER, THE USER(S)/ACCOUNT HOLDER(S), UNLESS THEY OBTAIN ACCESS TO THE PHOTO(S) DIRECTLY FROM THE OWNER OR THIRD PARTY SOURCE INDEPENDENT OF THE BRASS|MEDIA INC. WEBSITE, MAY NOT USE THE PHOTO FOR ANY OTHER PURPOSE OR IN SEPARATION FROM THE BY-THE-PIECE CONTENT. THE CC0 LEGAL CODE FOR THE CC0 LICENSE IS AVAILABLE THROUGH THE CREATIVE COMMONS SITE AT: https://creativecommons.org/publicdomain/zero/1.0/legalcode.
XXII. PERMITTED USES OF CONTENT
Subject to the restrictions provided in Section XXIII, this Agreement grants you the right to use the Content accessed from brass|MEDIA Inc. for yourself, your direct employer, or customer, who must be the end user of your work. You agree to take all commercially reasonable steps to prevent third-parties from duplicating any Content. If you become aware of any unauthorized duplication of any Content, please notify brass|MEDIA Inc. via email at Support@brassmedia.com.
This Agreement grants you the right to:
B. USE ON WEBSITES – Incorporate Content on websites (including Social Media Platforms, as such term is defined herein), provided that no Content is: i) displayed at a resolution greater than the display resolution of the intended viewing device; or ii) displayed as part of gallery, collection, album, archive, scrapbook or other aggregation of individual images and/or footage;
C. USE WITH EMAIL MARKETING – Use Content in coordination with opt-in email marketing. However, Content cannot be used in connection with unsolicited email or linked to from unsolicited email;
D. USE IN MOBILE APPS – Incorporate Content into software (including mobile “apps”) provided that the primary purpose of the software is the display of Content and further provided that Content or any digital files containing the Content cannot be unincorporated from the software;
E. USE IN FILM OR VIDEO – Incorporate Content into film, video, multimedia presentations, or advertising for broadcast or public performance provided that: (i) the distribution is fewer than two hundred fifty thousand (250,000) copies; or (ii) the intended audience (excluding video distributed solely on the internet at no cost to viewers) consists of fewer than two hundred fifty thousand (250,000) viewers, in the aggregate;
F. USE IN LARGE FORMATS – Use Content as prints, posters, postcards (i.e. a hardcopy) and for use and display, including display in commercial settings, provided such hardcopies are not resold or otherwise distributed;
G. USE IN ADVERTISING – Incorporate Content into advertising materials for use in promoting the sale of other products or services (as opposed to promoting the sale of products containing the Content), provided that the Content is an integrated, supportive part of your project or product and not the definitive part of such prints and/or posters and/or other reproductions and further provided that no Content is used for Out-of-Home advertising and further provided that the print or manufacturing run(s) of such Content does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
H. USE IN PRINT MEDIA – Use Content in magazines, newspapers or books for editorial and/or advertising purposes, provided that the print or manufacturing run(s) of such magazines, newspapers, books, book covers and textbooks does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
I. USE IN BROCHURES – Incorporate Content in pamphlets, brochures, and catalogs provided that Content is not used as a logo or trademark, and further provided that no individual piece of Content is reproduced more than 250,000 times in the aggregate;
J. OTHER RIGHTS RESERVED – All other rights in the Content are expressly reserved by brass|MEDIA Inc. for itself and its Contributors. If you wish to use Content in any manner not provided by this Standard Content Usage Agreement, you may contact brass|MEDIA Inc.’s for permission to use the Content in the desired manner with an Extended Content Usage Agreement, which provides a broader grant of rights.
XXIII. RESTRICTIONS ON THE USE OF CONTENT
YOU MAY NOT:
A. USE ONLY AS SPECIFIED – Use any Content other than as specified in this Agreement;
B. NO OWNERSHIP – You may not claim ownership of Content;
C. NO PRODUCTS FOR RESALE – You may not use Content in connection with any goods or services intended for resale or distribution where the primary value lies in the Content itself including, without limitation, cards, stationary items, paper products, calendars, apparel items, posters, CDs, DVDs, mobile applications or other items for resale, license or distribution for profit.
D. USE OF CREATIVE ELEMENT INDEPENDENT FROM CONTENT – Use any creative elements, either brass|MEDIA Inc. created or third party created elements (photos, graphics, footage, etc.) associated with any brass|MEDIA Inc. Content independent or apart from the Content. Use of these elements apart from the Content is a violation of this Agreement and at the sole discretion of brass|MEDIA Inc. may demand the removal of the Content and/or Image which the Account Holder hereby agrees to remove;
E. USER COMMISSIONED SERVICES – Use or display any Content on websites or in connection with any service designed to sell or induce sales of user-commissioned “print-on demand” products using or incorporating Content and/or Image(s), including, by way of example only, postcards, mugs, tee shirts, posters, giclée prints, wallpaper, artwork and other items. For the purposes of this Agreement, the term “print on demand” means, a printing technology and business process in which copies of a product are not printed until an order for the product has been received. Incorporating Content in any “print on demand” products, requires a permission from brass|MEDIA Inc.;
F. INFRINGE ON INTELLECTUAL PROPERTY – Use Content in such a manner that it infringes upon any third party’s trademark or other intellectual property;
G. USE IN OFFENSIVE WAYS – Use any Content in a way that places any person depicted in the Content in a way that a reasonable person would find offensive – this includes, but is not limited to the use of Content: a) in pornography, “adult videos” or the like; b) in ads for tobacco products or other addictive substances; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements and/or promotional materials for pharmaceutical, healthcare, herbal or medical products (including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products), f) if the use implies that the depicted person suffers from a physical or mental infirmity, ailment or condition or engages in any immoral or illegal activity, unless such depiction is expressly consistent with the portrayal of the model as represented in such Content in its original, unaltered form; or g) in any manner that is defamatory, or contains unlawful or offensive content;
H. EXCEED 250,000 COPIES – Except as expressly provided, directly or indirectly copy or reproduce any Content (in whole or in part) more than two hundred fifty thousand (250,000) times. Nor may you produce or otherwise create for resale or distribution, printed reproductions of any Content on paper, plastic, canvas or any other medium, tangible or intangible, unless expressly permitted by this agreement;
I. SHARE WITH UNAUTHORIZED INDIVIDUALS – Share any Content with individuals not representing you or your business by providing access to such Content on shared disk drives, computer networks, servers, cloud network or other intranets of any nature or otherwise;
J. USE IN PLACES WHICH IMPLY CLAIMS TO ACQUIRE RIGHTS – Use any Content on any third party social media website or platform (a “Social Media Platform”), if such Social Media Platform claims to acquire rights contrary to this Agreement as a result of such use. In such event, you will promptly remove Content from the Social Media Platform upon brass|MEDIA Inc.’s request;
K. COMPETE – Use Content in any manner that competes with brass|MEDIA Inc.’s business. This includes, by way of illustration only and not by way of limitation, displaying Content in any format (including thumbnails) for download on a website, offering Content for sale, incorporating Content into templates of any nature, including templates for websites, social networking profiles, documents, projects or otherwise making Content available for distribution and/or sale to third parties;
L. CREATE COLLECTIONS – Use brass|MEDIA Inc. Content as the primary feature of any individual physical or digital product or any collection thereof which is offered for sale, trade or otherwise distributed in violation of the terms of this Agreement;
M. SEPARATE FOOTAGE – Use still images captured from Footage other than for the in-context marketing, promotion, and advertising of your derivative works incorporating Footage;
N. USE IN TRADEMARKS – Use any Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services;
O. MISREPRESENT AUTHORSHIP – Use or display any Content in such a manner that gives the impression that the Content was created by you or a person other than the copyright holder of that Content. Additionally, you may not use or display any Content is such a manner that gives the impression that any person depicted in the Content is the author or creator of any product in which the Content is incorporated;
P. AUTOMATE ACCESS – Use automated programs, applets, bots or the like to access the brass|MEDIA Inc.com website or any content thereon for any purpose, including, by way of example only, downloading Content, indexing, scraping or caching any content on the website.