You may only submit User Content to the Service for which you hold all intellectual property rights. You must own or have the necessary licenses, rights, consents and permissions to all patent, trademark, trade secret, copyright or other proprietary rights to the User Content and any other works that you incorporate into the User Content. You must have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use such person's name or likeness in the User Content for use in the manner contemplated in this Agreement. The Service is limited to parties that lawfully can enter into and form contracts under applicable law. Therefore, minors may not submit User Content to the Service. Further, you may not submit any personally identifiable information about any child under the age of 13.
As used in this Agreement, (a) "Affiliates" means any entity controlled by, in control of, or under common control with Michael Kelly Guitars, (b) "User Content" means all content that you submit to Michael Kelly Guitars, including all photographs, illustrations, graphics, audio, video and text, and (c) "Media" means any means of conveying information, whether now known or hereafter devised.
3) Privacy and Confidentiality
You expressly acknowledge and agree that the Service is a public service, that once you submit User Content for inclusion into the Service it will be accessible by others. If the Service provides you with the option of limiting the sharing of a particular piece of User Content at a particular time, Michael Kelly Guitars will honor the option you have selected for that piece of User Content at that time, but any such selection shall apply only to that particular piece of User Content and not more generally to User Content across the Service. Except where this option is provided and you select it, there is no confidentiality or privacy with respect to User Content. If you include personally identifying information within User Content that you submit through the Service, where no option of limiting a particular piece of User Content is available or you have not selected the available option, you acknowledge that this information becomes publicly accessible upon submission. Once you have posted User Content it cannot be removed from the Service.
4) License Grant for User Content
You retain ownership of User Content that you submit for inclusion into the Service. However, by submitting User Content to Michael Kelly Guitars, you hereby grant to Michael Kelly Guitars and its Affiliates a worldwide, nonexclusive, royalty-free, perpetual right and license to (a) use, reproduce, distribute, transmit, publicly perform and publicly display the User Content, in whole or in part, in any manner and Media, (b) modify, adapt, translate and create derivative works from the User Content, in whole or in part, in any manner and Media, and (c) sublicense the foregoing rights, in whole or in part, to any third party, with or without a fee.
5) License for Name, Trademarks, and Likenesses
You hereby grant to Michael Kelly Guitars, its Affiliates and sublicensees a nonexclusive, worldwide, royalty-free license to use all trademarks, trade names, and the names and likenesses of any individuals that appear in the User Content. You grant Michael Kelly Guitars, its Affiliates and sublicensees the right to use the name that you submit in connection with the User Content, unless you have selected a privacy option as set forth in Section 3.
6) Specifications and Guidelines
You agree to submit User Content to us in accordance with all guidelines for use of the Service posted on the Michael Kelly Guitars web site.
7) Representations, Warranties, and Indemnities
You represent and warrant to Michael Kelly Guitars and its Affiliates that (a) you have the right, power, and authority necessary to enter into this Agreement, to fully perform your obligations hereunder, and to grant the licenses set forth in Sections 4 and 5 above, (b) you will comply fully with all terms of this Agreement, (c) the User Content submitted to Michael Kelly Guitars by you, and Michael Kelly Guitars's and its Affiliates' exercise of their rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party, (d) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of the User Content by Michael Kelly Guitars and its Affiliates as permitted hereunder, (e) the User Content is not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful, and (f) all factual statements submitted by you are accurate and not misleading. You agree to indemnify, defend, and hold Michael Kelly Guitars and its Affiliates harmless from all claims, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from your breach of any representation or warranty set forth in this paragraph.
We expressly reserve the right to reject, refuse to accept, remove or otherwise handle as Michael Kelly Guitars deems appropriate any User Content that is or could be construed as violating any of the terms and conditions of this Agreement, applicable laws or our community standards. We also reserve the right to reject, refuse or remove content for any reason, as we see fit. You agree that you will not upload, post, e-mail or otherwise transmit User Content to us or our Affiliates that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
9) No Obligation
Although we have the right to include the User Content in the Service or in any Media, we have no duty or obligation, express or implied, to post, host, stream or otherwise include any of the User Content in any Michael Kelly Guitars property. We may, in our sole discretion and for any reason, refuse the User Content or remove it from our service at any time.
10) Changes to Agreement
We reserve the right to change any of the terms of this Agreement or any Specifications or Guidelines governing the Service at any time in our sole discretion. All changes will be effective upon posting to the Agreement. If you do not agree with all the terms and conditions of this Agreement at any time, including, without limitation, those times when we make changes, do not use, do not attempt to use, the Service. If you choose to upload User Content you will be deemed to have accepted the conditions of this Agreement, including, without limitation, any changes we have made or may make. The new terms of the Agreement will govern all prior and future submissions of User Content.
11) Michael Kelly Guitars Intellectual Property
Without our prior written consent, you may not use our intellectual property, including, without limitation, our trademarks, trade names, trade dress, or copyrighted material, in any manner.
12) Lost Content
Michael Kelly Guitars is not responsible for lost, damaged, misdirected, unusable, or unreadable User Content. Proof that you submitted User Content does not constitute proof that we received anything. You should not rely on Michael Kelly Guitars as a backup, and should keep your own copies of User Content because we do not promise that User Content will be posted, accessible or preserved.
Michael Kelly Guitars and its Affiliates may communicate with you in connection with the Service, electronically and in other Media, and you consent to such communications regardless of any "Communication Preferences" (or similar preferences or requests) you may have indicated on the websites of Michael Kelly Guitars or its Affiliates or by any other means.
14) Invalidity of Specific Terms
If any provision of this Agreement or any document incorporated by reference is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of such documents remain in full force and effect.
Michael Kelly Guitars AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF (OR KNEW OR SHOULD KNOWN OF) THE POSSIBILITY OF SUCH DAMAGES.
Michael Kelly Guitars PROVIDES THE SERVICE "AS IS" WITHOUT WARRANTY OF ANY KIND.
This Agreement will be governed by the laws of the United States of America and the state of New Jersey, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in New Jersey, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and permitted assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently. The Specifications and Guidelines (including all future changes) are incorporated by reference into this Agreement. This Agreement is in addition to, and does not supersede or modify, the terms and conditions of use of the websites of Michael Kelly Guitars and its Affiliates.
This Agreement was updated on May 26, 2009, and is effective immediately.