1. Ownership of Content
The Record Kong web site may offer featured articles, pictures, information, digital images, games, surveys, contests and sweepstakes, advertising, logos, trademarks and other content (collectively referred to hereinafter as "Content," but excluding specifically User Content as defined below) we hope will be of interest to our visitors. Content may be in the form of text, data, music, sound, graphics, images, pictures, photographs, videos, software or other forms now known or later invented. Record Kong makes no representations or warranties that the Content is available, appropriate or legal to access. Except for User Content (as hereinafter defined), all Content posted on or otherwise available via this site is owned by Record Kong or used with authorization. Please feel free to browse the site, but you must respect the rules and restrictions set forth in these TOU and our intellectual property rights as set forth in these TOU. Please note that downloading software, information, data or images from this site does not give you title or other rights to such Content.
2. Restrictions on the Use of the Site
As a condition of using this site, you agree that you will not:
- (a) Without the prior written consent of record Kong, modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell any Content;
- (b) Submit, display, or transmit any User Content (as hereinafter defined) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- (c) Submit, display, or transmit any User Content that exceeds Record Kong's capacity limits or for which you do not own or have the necessary and appropriate rights;
- (d) Submit, display, or transmit any spam, duplicative messages, unauthorized promotions or advertisements, surveys, contests, chain letters, or pyramid schemes;
- (e) Forge headers, create a false identity, or otherwise manipulate identifiers in order to deceive others or disguise the origin of any User Content transmitted to or via the site;
- (f) Use the site to threaten, defame, abuse, assault, stalk, harass or otherwise violate the rights of any other person or entity, including without limitation rights of privacy or publicity;
- (g) Publish, post, display, offer, or disseminate any profane, obscene, indecent, unlawful, terroristic, violent, or hateful User Content;
- (h) Collect, store, publish, post, sell, transmit, or disclose personal data about other users of the site; or
- (i) Monitor or copy Content.
Site Security Use Restrictions
Record Kong takes the security of this web site and its other web sites seriously. Therefore, in addition to the restrictions set forth above, you may not:
- (a) interfere or attempt to interfere with the proper working of this web site or any activity or service on this web site by using any robot, "bot," spider, crawler, engine, device, software, tool, routine or any other automatic device or manual process of any like or kind without our written permission, or engage in any activity which interferes with the proper working of or access to this site or to any host or network;
- (b) attempt to access data or information not intended for you or log onto a server or account that you are not authorized to access;
- (c) access or attempt to access any system or servers on which the site is hosted or modify or alter the site in any way;
- (d) upload or otherwise transmit files that contain viruses, worms, Trojan horses, malicious code, spyware, adware, sniffers, corrupted files, or similar software or programs;
- (e) restrict or prevent any other user from using the site and/or any products, services, or Content posted on or offered through the site;
- (f) post or upload User Content (as hereinafter defined) that disrupts the normal flow of dialogue with an excessive amount of User Content (flooding attack) to the site, or that otherwise negatively affects other users' ability to access or use the Record Kong Platform or any Record Kong web site; or
- (g) link to, frame, or otherwise reproduce this site or any other Record Kong web site without the prior written consent of Record Kong.
Record Kong reserves the right to investigate any violations of its system, network or web site security, to involve and cooperate with law enforcement authorities in investigating such violations, and to prosecute violators to the fullest extent of the law.
Copyright to all Content on the site is either owned by Record Kong or is licensed to Record Kong. No Content or other material from this site may be copied, reproduced, published, republished, uploaded, posted, displayed, transmitted, modified, used to prepare derivative works, distributed or redistributed in any way in any medium whatsoever now known or later invented, except that you may download one copy of the material on any single computer for your personal, non-commercial home use only, provided you retain all copyright and other proprietary notices. Any attempt to modify these materials or to use these materials for any other purpose constitutes a violation of our copyright and other proprietary rights, and may subject you to injunctive relief, statutory damages and other penalties. The use of any such material on any other web site or networked computer environment is prohibited without the express written permission of Record Kong.
Procedures for Making Copyright Infringement Claims. Except as expressly provided above, nothing contained herein shall be construed as conferring any license or right under any copyright or any other intellectual property right. It is our policy to respond appropriately to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"), including by removing or disabling access to material claimed to be the subject of infringing activity. If you are an owner of intellectual property who believes that your intellectual property has been improperly posted or distributed via this web site, please notify our designated DMCA agent immediately. All DMCA legal notices should be directed to the legal mailbox at firstname.lastname@example.org. DMCA Notices must be in writing and must include the following information:
- a) an electronic or physical signature of the person authorized to act on behalf of the copyright owner;
- b) a description of the copyrighted work that you claim has been infringed;
- c) the URL of the site and a description of where the material that you claim is infringing is located on that site;
- d) your address, telephone number, and email address;
- e) a statement by you that you have a good faith belief that the alleged infringing material is not authorized by the copyright owner, its agent, or the law;
- f) a statement by you, made under penalty of perjury, that all the information in your Notice is accurate, and that you are either the copyright owner or authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed.
4. Trademarks and Proprietary Rights Notices
All trademarks, logos, trade names or service marks (collectively the "Marks") mentioned, used, or displayed on this site are either owned by Record Kong or otherwise are authorized for our use. You may not display or reproduce the Marks other than with the prior written consent of Record Kong. You may not remove, obscure, or otherwise modify any copyright, trademark, confidentiality or other proprietary rights notices displayed on, embedded in, or otherwise appearing in any Content offered by, viewed on, or received through this site or any other Record Kong web site.
5. User Content
Some of our sites allow users to post, submit, or display information, messages, suggestions, questions, comments, postings, advertisements, ratings, ideas, techniques, notes, know-how, drawings, concepts, designs, audio visual material, photographs and pictures (including pictures of the user and other representations of the user's name and likeness), digital images, or other content in any form (collectively "User Content"). By posting User Content on this site or any Record Kong web site, you hereby grant Record Kong an unrestricted, transferable and sub-licensable, irrevocable, royalty-free, world-wide, and perpetual license to reproduce, distribute, publicly display, make derivative works of, and otherwise use the User Content in any media whatsoever now known or later invented throughout the world for any purpose whatsoever, commercial or not. You hereby disclaim any right to any compensation from Record Kong in connection with Record Kong's exercise of its license rights in and to the User Content you have posted on this site or any other Record Kong web site. You acknowledge and agree that Record Kong is under no obligation of confidence to you, and shall not be liable for any use or disclosure of any User Content. By posting the User Content on any site, you represent and warrant that you own the copyright in such User Content or that you have a legitimate license to post the User Content, including photographs or other audiovisual material, without any restrictions whatsoever.
Record Kong has no obligation to monitor this site or any portion thereof. However, Record Kong reserves the right to review any User Content and remove, delete, redact, or otherwise modify such User Content, in its sole discretion, at any time and from time to time, without notice or further obligation to you. Record Kong has no obligation to display or post any User Content. Record Kong reserves the right to disclose, at any time and from time to time, any information or User Content that Record Kong deems necessary or appropriate
6. No Warranty; Disclaimers
THE CONTENT OF THE RECORD KONG PLATFORM, AND THE PRODUCTS WE DELIVER (INCLUDING, BUT NOT LIMITED TO, GAMES AND OTHER THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. RECORD KONG, ITS SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT THE RECORD KONG PLATFORM AND ANY CONTENT PROVIDED IN CONNECTION THEREWITH. RECORD KONG, ITS SUPPLIERS AND LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE RECORD KONG PLATFORM, FOR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT CONTAINED ON THE RECORD KONG PLATFORM, FOR ANY LOSSES OR DAMAGES ARISING FROM THE ACCESS OR USE OF THE RECORD KONG PLATFORM, OR FOR ANY CONDUCT BY USERS OF THE RECORD KONG PLATFORM. TO THE FULL EXTENT PERMISSIBLE BY LAW, RECORD KONG, ITS SUPPLIERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE RECORD KONG PLATFORM AND THE GAMES WE DELIVER, INCLUDING WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE RECORD KONG PLATFORM IS ACCURATE, COMPLETE, OR CURRENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE RECORD KONG PLATFORM IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE RECORD KONG PLATFORM. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE RECORD KONG PLATFORM AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST RECORD KONG, ITS SUPPLIERS AND LICENSORS, FOR DISSATISFACTION WITH THE RECORD KONG SITE OR SERVICES IS TO STOP USING THE RECORD KONG PLATFORM.
Record Kong reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Record Kong Platform, or any portion thereof, for any reason; (2) to modify or change the Record Kong Platform, or any portion thereof, and any applicable policies or terms; and (3) to interrupt the operation of the Record Kong Platform, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RECORD KONG, ITS MEMBERS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, “RECORD KONG”, RECORD KONG PARTY” or RECORD KONG PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OR FAILURE OF ANY WARRANTY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU IN CONNECTION WITH PURCHASE OF GOODS FROM US OR THE TERMS OF THIS AGREEMENT, INCLUDING WHETHER OR NOT A RECORD KONG PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RECORD KONG PARTIES’ TOTAL LIABILITY IN CONNECTION WITH THE PURCHASE OF GOODS THROUGH THE PLATFORM OR THIS LIMITED WARRANTY WILL NOT EXCEED THE PURCHASE PRICE FOR SUCH GOODS. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the Record Kong Platform. Some states, provinces or territories do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You agree to defend, indemnify and hold Record Kong harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from or related to: (i) your use of and access to the Record Kong Platform; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties contained herein; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any content that is submitted via your account; or (vi) any other party's access and use of any portion of the Record Kong Platform with your unique username, password or other appropriate security code. You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the Record Kong Platform.
9. Arbitration Agreement and Class Action/Arbitration Waiver
Any claim, dispute or controversy between you and Record Kong that arises in whole or in part from all or any portion of your access or use of the Record Kong Platform or otherwise in connection with this Agreement, or the breach, termination, enforcement, interpretation of validity thereof, including the determination of the scope of applicability of this agreement to arbitrate (a "Dispute") shall be decided exclusively in small claims court or by binding arbitration as set forth in this section, and not by courts of general jurisdiction.
If a Dispute meets all requirements to be heard in small claims court, you may litigate the Dispute in small claims court in your county of residence or in Orange County, California.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision and that you and Record Kong are each waiving the right to a trial by jury. YOU AND RECORD KONG AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT THIS CLASS ARBITRATION WAIVER APPLIES TO YOU AND TO ANY CHILD OR OTHER PERSON ON WHOSE BEHALF YOU REGISTER WITH THE RECORD KONG PLATFORM.
If you elect to seek arbitration in connection with a Dispute, you must first send to Record Kong, by certified mail, a written notice of the claim ("Notice") to the Record Kong address set forth at the end of this Agreement. If Record Kong elects to seek arbitration in connection with a Dispute, it will send, by certified mail, a written Notice to the address used for your Record Kong account. A Notice, whether sent by you or by Record Kong, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Record Kong and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Record Kong may file a claim in small claims court or commence an arbitration proceeding.
During the arbitration, the amount of any settlement offer made by Record Kong or you shall not be disclosed to the arbitrator. You may obtain a form to initiate arbitration at www.jamsadr.com. If you are required to pay a filing fee, after Record Kong receives notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000. The arbitration will be governed by the JAMS Streamlined Arbitration Rules & Procedures ("JAMS Rules") in effect at the time of the Dispute, as modified by this Agreement, and will be administered by JAMS, Inc. ("JAMS"). JAMS' Rules and Forms are available online at www.jamsadr.com, by calling JAMS at 1-800-352-5267 or by writing to Record Kong at the address set forth at the end of this Agreement. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless Record Kong and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the JAMS Rules including the JAMS Rules regarding the selection of an arbitrator). The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Record Kong's last written settlement offer made before an arbitrator was selected (or if Record Kong did not make a settlement offer before an arbitrator was selected), then Record Kong will pay you the amount of the award or US$1,000, whichever is greater. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.