IMPORTANT! PLEASE READ THIS SUBSCRIPTION AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE SUBSCRIBING TO THE OVERHEAD.FM MUSIC DISTRIBUTION BUSINESS PLATFORM (THE "PLATFORM") AVAILABLE THROUGH (THE "SITE"), AS THE TERMS AFFECT EACH SUBSCRIBER'S ("YOU", "YOUR" OR "CUSTOMER'S") LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY AND CUSTOMER'S INDEMNITY TO OVERHEAD.FM, INC. ("WE", "US", "OUR" OR "OVERHEAD"). BY CLICKING "I HAVE READ, UNDERSTAND AND AGREE TO THE SUBSCRIPTION AGREEMENT," EACH CUSTOMER AGREES TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE BUTTON AND DO NOT USE THE PLATFORM OR THE SITE . THIS AGREEMENT GOVERNS CUSTOMER'S CONTINUED ACCESS TO AND USE OF THE PLATFORM.
1.1 Generally. Access to the Platform offered on or through the Site requires you to first purchase a subscription (a "Subscription"). We may offer promotional trial Subscriptions to access the Platform for free or at special discounted prices. If you sign up for a free trial use, your rights to use the Platform are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering. To purchase any goods and/or services, including, without limitation, a Subscription to the Platform, you must be at least the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any goods or services on our Platform, you must provide our payment processor with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card; (ii) your credit card number; (iii) the credit card type; (iv) the date of expiration; and (v) any activation numbers or codes needed to charge your card. By submitting that information, you hereby agree that you authorize us or our payment processor to charge your card at our convenience but within thirty (30) days of credit card authorization. All sales are final. All charges from those sales are non-refundable. For each Subscription, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price. We will generally charge you on the day that you sign-up for your Subscription, and for future months, on that same day of the month of your initial purchase (however if you sign-up on the 31st of a month and a month does not have 31 days, you will instead be charged on the last day of that month).
1.2 Methods of Payment and Credit Card Terms. All payments must be made by Visa, MasterCard, Discover, American Express, Diners Club, JCB, Discover or other payment method accepted by our payment processor. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Overhead of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Overhead does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Overhead or its agents.
1.3 Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Overhead reserves the right at any time after receipt of your order to accept or decline your order for any reason. Your order will be deemed accepted by Overhead upon our providing access to the Platform to you. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.
1.4 No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product, service or Subscription offered on this Site as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Site is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product, service or Subscription, Overhead shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge.
1.5 Modifications to Prices or Billing Terms. OVERHEAD RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD OR ACCESS TO THE PLATFORM OR SITE, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.
2.1 Access Rights. During the Term (defined below) of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's designated business location to access and use the Platform solely in one (1) physical location for Customer's business purposes consistent with the terms and conditions of this Agreement. Overhead will issue to the representative of Customer an individual log-in identifier and password for purposes of accessing the Platform. Customer shall: (a) be responsible for the security and/or use of his or her log-in identifier; (b) not disclose that log-in identifier to any person or entity; (c) not permit any other person or entity to use his or her log-in identifier; and (d) use the Platform in accordance with the terms and conditions of this Agreement. Overhead reserves the right to deny, suspend or revoke access to the Platform, in whole or in part, if Overhead believes Customer is in breach of this Agreement or are otherwise using or accessing the Platform in a manner inconsistent with the terms and conditions of this Agreement.
2.2 Restrictions. Customer agrees that it will not: (a) sell, lease, distribute, license or sublicense the Platform or access to the Site; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Platform or Site in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Platform or Site by, any third party (excluding Customer's authorized employees or agents in the course of their duties consistent with the terms and conditions of this Agreement); (d) copy or reproduce all or any part of the Site or Platform (including any music available thereon); (e) interfere, or attempt to interfere, with the Platform or Site in any way; (f) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal, harmful or unauthorized use of the Platform; (g) introduce into or transmit through the Platform or Site any tracking device, virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Platform or Site; or (i) engage in or allow any action involving the Platform or Site that is inconsistent with the terms and conditions of this Agreement or causes harm to Overhead, its licensors, the Platform, the Site or their users.
2.3 Non-Exclusivity. The parties acknowledge and agree that Overhead is providing access to and use of the Platform to multiple customers and those services are non-exclusive and non-transferable by Customer.
2.4 Availability. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Overhead makes no guarantees that any given Customer will be able to access the Platform or Site at any given time, and except as otherwise specifically provided herein, Overhead shall not be liable to Customer for failure of accessibility to the Platform or Site.
2.5 Proprietary Rights. No right (except for the license granted in Section 2.1), title or interest of intellectual property or other proprietary rights in and to the Site, Platform and/or other products or services made available under this Agreement is transferred to Customer under this Agreement. Overhead and its third party licensors retain all right, title and interests, including, without limitation, all copyright and other proprietary rights in and to the Site, Platform, music and/or other products or services provided under this Agreement.
3.1 Term. This Agreement will commence as of the Effective Date and will continue in full force on a month to month term until such time as the Customer cancels their Subscription through the account functionality on the Site (the "Term"). In the event that Customer cancels their Subscription in the middle of their monthly subscription, Customer will not be entitled to receive a refund for the unused portion of the remainder of that month's Subscription.
3.2 Termination by Overhead. Overhead will have the right, upon written notice to Customer, to terminate this Agreement, and suspend Customer's access to the Platform, if: (a) Customer fails to pay Overhead any amount due to Overhead under this Agreement; (b) Customer violates its representations or warranties set forth in Section 5.1; (c) Customer materially breaches any term or condition of this Agreement; provided, however, that if such breach is reasonably capable of cure without risking harm to Overhead or its licensors, Customer shall have thirty (30) calendar days following Overhead's notice to Customer to cure such breach; or (d) Customer: (i) fails to give reasonable assurances of the ability to timely and fully perform its obligations after Overhead's written request; (ii) terminates or suspends its business activities or becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes. Overhead shall have the right to terminate this Agreement and suspend Customer's access to the Platform with or without cause, upon thirty (30) days written notice to Customer in which case Customer will no longer be charged for access to the Platform.
3.3 Obligations upon Termination or Expiration. Upon the expiration or termination of this Agreement for any reason Customer's access to, and use of, the Platform will terminate.
3.4 Survival. Any sections of this Agreement that by their nature should survive termination of this Agreement will survive, including, but not limited to, Sections 2, 3, 4.2 and 6.
4.1 Fees. Customer shall receive access to the Platform for a monthly fee the amount of which is disclosed on the Site on our pricing page, payable in advance.
4.2 Taxes. Customer will pay or reimburse Overhead for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Overhead under this Agreement, excluding, however, income taxes on Overhead's profits. Such taxes may be charged on Customer's credit card.
4.3 Yearly Adjustment. Overhead may adjust the fees one (1) time per year upon notice to Customer and Customer will have thirty (30) days from receipt of such notice to decide whether to terminate the Agreement or accept the new payment terms.
5.1 Customer Warranty. Customer represents and warrants to Overhead that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer will only use the Platform for lawful purposes and consistent with the license granted in Section 2.1 and Customer will not violate any law, rule or regulation of any country or the intellectual property rights of any third party; and (c) Customer is not located in a country where export or re-export of the contents of information received via the Internet is prohibited.
6.3 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without Overhead's prior written consent. Overhead will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Customer.
6.4 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite, Internet or network failures.
6.5 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of Overhead and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of Overhead and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
6.6 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
6.7 Public Announcements. Customer grants Overhead the right to use the Customer's name and trademarks when indicating that Customer is a customer of Overhead, including, without limitation, in press releases, product brochures and financial reports.
6.8 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.