Terms and Conditions

THE ORCHARD ENTERPRISES, INC.

Terms & Conditions

The following Terms and Conditions (the “T&C) govern your use of The Orchard Enterprises Inc.’s website.  This website is made available by The Orchard Enterprises, Inc. and its subsidiaries (collectively, “Orchard” or “we” or “us”).  We may change the Terms and Conditions from time to time, at any time without notice to you, by posting such changes on our website.  BY USING OUR WEBSITE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF OUR WEBSITE.  If you do not agree to these Terms and Conditions, you may not access or otherwise use our website.  PLEASE READ THIS CAREFULLY!

Proprietary Rights.  As between you and the Orchard, the Orchard owns, solely and exclusively, all rights, title and interest in and to our website. All the content on this website, including, but not limited to, text, data, graphics, logos, button icons, images, audio clips, video clips, links, digital downloads, data compilations, and software is owned, controlled by, or licensed to the Orchard and is protected by copyright, trademark, and other intellectual property rights. Your use of our website does not grant to you ownership of any content, code, data or materials you may access on our website.  You may view the content on our website, on your computer or other internet-compatible device, and make single copies or prints of the content for your personal, internal use only.  Any commercial distribution, publishing or exploitation of our website, or any content, code, data or materials on our website, is strictly prohibited unless you have received the express prior permission of the Orchard.  You may download material intentionally made available for downloading from this website for your personal, non-commercial use only, provided that you keep intact any and all copyright and other proprietary notices that may appear on such materials.

Trademarks.  The trademarks, logos, service marks and trade names (collectively the “Trademarks”) displayed on this website are registered and unregistered Trademarks of the Orchard and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders.  All Trademarks not owned by Orchard that appear on this website, if any, are the property of their respective owners.  Nothing contained on this website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on our website without the written permission of the Orchard or the third party that may own the applicable Trademark. Your misuse of the Trademarks is strictly prohibited.

User Information.  You may be asked to provide certain personalized information to us (such information referred to hereinafter as “User Information”) in connection with your use of our website.  Our information collection and use policies with respect to the privacy of such User Information are set forth in our Privacy Policy which is incorporated herein by reference for all purposes.  You acknowledge and agree that you are solely responsible for the accuracy and content of User Information.

User Conduct. You warrant and agree that, while using our website, you shall not upload, post or transmit to our website, or distribute or otherwise publish through our website, any materials that: (a) are protected by third party copyright, or other proprietary or intellectual property right; (b) are unlawful, threatening, hateful, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), © restrict or inhibit any other user from using and enjoying our website, (d) constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability, or (e) contain a virus or other harmful component, advertising of any kind, or false or misleading indications of origin or statements of fact.

You also warrant and agree that you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) upload, post, publish, transmit, reproduce, distribute or in any way exploit any information or other material obtained through the site for commercial purposes (other than as expressly permitted by the provider of such information or other material); © engage in spamming, flooding, harvesting of e-mail addresses or other personal information, spidering, “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information, or send chain letters or pyramid schemes via our website; or (d) attempt to gain unauthorized access to other computer systems through our website. You agree that you will not use our website in any manner that could damage, disable, overburden, or impair our website or interfere with any other party’s use and enjoyment of our website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through our website.

Although we may from time to time monitor or review postings, transmissions, blog comments, and the like on our website, we are under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations on our website nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such locations on our website.

Unsolicited Materials.   Unless specifically requested, we do not solicit nor do we wish to receive any confidential, secret or proprietary information or other material from you through our website or by e-mail or in any other way.  Any information, creative works, demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques or other materials submitted or sent to us, posted, uploaded, imputed or provided to us in any other form of communication through this website (“Submitted Materials”) will be deemed not to be confidential or secret, and may be used by us in any manner consistent with our Privacy Policy.  By submitting or sending Submitted Materials to us, you: (i) represent and warrant that the Submitted Materials are original to you, that no other party has any rights thereto, and that any “moral rights” in Submitted Materials have been waived, and (ii) you grant us a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed.  We cannot be responsible for maintaining any Submitted Material that you provide to us, and we may delete or destroy any such Submitted Material at any time. The foregoing grants shall include the right to exploit any proprietary rights in such communication, including but not limited to rights under copyright, trademark, service mark, or patent laws under any relevant jurisdiction.

Third Party web Sites.  You may be able to link from our website to third party websites (“Linked Sites”).  For example, you may purchase products on or though Linked Sites. You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites.  Links to Linked Sites do not constitute an endorsement by us of such web sites or the information, content, products, services, advertising, code or other materials presented on or through such web sites.

DISCLAIMER OF WARRANTIES. OUR WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.  WE DO NOT WARRANT THAT OUR WEBSITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.  WE MAKE NO WARRANTY THAT OUR WEBSITE WILL MEET USERS’ REQUIREMENTS.  NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.  ORCHARD ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN OUR WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM OUR WEBSITE.  IF YOU ARE DISSATISFIED WITH OUR WEBSITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING OUR WEBSITE.

ORCHARD HAS PROVIDED LINKS AND POINTERS TO INTERNET SITES MAINTAINED BY THIRD PARTIES (“THIRD PARTY SITES”) AND MAY, FROM TIME TO TIME, PROVIDE THIRD PARTY MATERIALS ON THIS WEBSITE. NEITHER ORCHARD, ITS PARENT OR SUBSIDIARY COMPANIES, NOR THEIR AFFILIATES, OPERATE OR CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES ON THESE THIRD PARTY SITES. THE MATERIALS IN THIS WEBSITE AND THE THIRD PARTY SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS WEBSITE AND ANY SERVICES PROVIDED HEREIN.

LIMITATION OF LIABILITY.  IN NO EVENT SHALL ORCHARD OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, OUR WEBSITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.  IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH OUR WEBSITE.  IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF OUR WEBSITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO ORCHARD FOR YOUR USE OF OUR WEBSITE.

VOID WHERE PROHIBITED. Although our website is accessible worldwide, not all products or services discussed or referenced on this website are available to all persons or in all geographic locations. Orchard reserves the right to limit, in its sole discretion, the provision and quantity of any product or service to any person or geographic area it so desires. Any offer for any product or service made in this website is void where prohibited.

INDEMNIFICATION . You agree to indemnify, defend, and hold harmless Orchard and its affiliated companies, officers, directors, employees, agents, licensors, and suppliers from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation by you of these Terms and Conditions. Orchard reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.

LITIGATION ISSUES . This Agreement is entered into in the State of New York and shall be governed by, and construed in accordance with, the laws of the State of New York, exclusive of its choice of law rules. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the City of New York in the State of New York, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Each party to this Agreement further agrees as follows: (i) any claim brought to enforce this Agreement must be commenced within two (2) years of the cause of action accruing; (ii) no recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees; (iii) any claim must be brought individually and not consolidated as part of a group or class action complaint.

MISCELLANEOUS . In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto with respect to the subject matter of this Agreement are expressly canceled. Orchard may modify the terms of this Agreement at any time.