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Click on a link below in Table of Contents to view.
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ARTICLE I.
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GENERAL
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ARTICLE II.
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SCOPE OF SERVICE; ENROLLMENT
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ARTICLE III.
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TERMS AND CONDITIONS
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ARTICLE IV.
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FEES
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ARTICLE V.
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DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
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ARTICLE VI.
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MISCELLANEOUS
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DOWNLOAD SALES
AGREEMENT FOR BUYERS
BY CHOOSING "I ACCEPT" OR SIMILAR LANGUAGE ON THE GIGAHITZ
DOWNLOADS STORE, YOU CONFIRM THAT YOU WILL BECOME A PARTY TO THIS
AGREEMENT, AND YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF
THIS AGREEMENT, ALL REFERENCED POLICIES AND ALL OTHER AGREEMENTS THAT ARE
INCORPORATED HEREIN. WE MAY MODIFY THIS AGREEMENT FROM TIME TO TIME AS
FURTHER DESCRIBED IN ARTICLE II BELOW. IF YOU DO NOT AGREE TO THESE TERMS
OR ANY SUBSEQUENT MODIFICATION, CLICK THE "I DO NOT ACCEPT"
BUTTON OR OTHERWISE DO NOT USE THE GIGAHITZ DOWNLOADS STORE. THE
"EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK
THE "I ACCEPT" BUTTON. GIGAHITZ RESERVES THE RIGHT TO REJECT YOUR
OFFER TO USE THE GIGAHITZ DOWNLOADS STORE IN ITS SOLE DISCRETION.
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ARTICLE I.
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GENERAL
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Section 1.01
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This is an agreement between you (“you” or “Buyer”) and Gigahitz
Ltd. ("we", "us" or "Gigahitz").
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Section 1.02
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This Agreement governs your use of the Gigahitz Downloads
Store (the “GDS”). When we refer to "use" of the GDS in this
Agreement, we mean any actual or attempted access or use of the GDS, including,
without limitation, any transmission, exchange of information or
communication associated with the GDS.
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Section 1.03
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This Agreement incorporates by reference the Gigahitz User
& Subscription Agreement (hereinafter the “USA,” found at (www.Gigahitz.com)
and you agree to its terms. This Agreement is intended to be read with the USA and not to limit it. Any conflicts or inconsistencies between this Agreement and the USA shall be resolved on a case-by-case basis in the manner most likely to effect the
intent of the Parties.
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ARTICLE II.
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SCOPE OF SERVICE; ENROLLMENT
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Section 2.01
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The GDS permits individuals or entities who maintain a Gigahitz
membership account ("Buyers") to purchase songs that other Gigahitz
members (“Merchants”) have chosen to make available for sale in the GDS. Gigahitz
may sell these songs via permanent digital download, streams or burns, as
individual tracks or as whole albums. The GDS is provided to Buyers for
individual use only.
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Section 2.02
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Gigahitz currently provides the GDS for downloading purchased
music in the MP3 format. In order to use the GDS, you must obtain access to
the Internet and pay any service fees associated with such access. In
addition, you must provide all equipment necessary to make such connection
to the Internet and to be able to download and listen to the music files.
To enroll as a Buyer, you must first complete the Gigahitz subscription
process located on our web site at http://www.Gigahitz.com (the
"Site") or such other registration process as we may require.
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Section 2.03
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We have sole discretion as to the operation, availability and
scope of the GDS. We reserve the right to modify, expand, update,
discontinue or otherwise change the GDS (or component thereof) and the
terms of this Agreement. We will notify you of any material changes to this
Agreement by posting the revised terms to the Site. YOU SHOULD REFER TO THE
SITE FREQUENTLY TO ENSURE THAT YOU HAVE REVIEWED AND ARE FAMILIAR WITH THE
MOST RECENT VERSION. Unless we state otherwise, the change, addition or
deletion will apply to your future use of the GDS. You are deemed to accept
all changes, additions or deletions if you use the GDS after they have been
posted. If you do not agree to any such change, your sole remedy is to
terminate this Agreement pursuant to Article III.
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ARTICLE III.
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TERMS AND CONDITIONS
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Section 3.01
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The following terms shall have the following meanings for
purposes of this Agreement:
(a) "Term" means the period beginning on the Effective Date of
this Agreement and extending conterminously with your uninterrupted status
as a Gigahitz Subscriber, regardless of whether your subscription is paid
or complimentary. If your Gigahitz subscription terminates for any reason
and you later re-subscribe, this Agreement will not automatically revive.
(b) "Territory" means the Universe.
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Section 3.02
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You may terminate this Agreement at any time by providing Gigahitz
with thirty (30) days' written notice of your intention to terminate. Gigahitz
may terminate this Agreement at any time, without notice and in its sole
discretion.
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Section 3.03
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Gigahitz will make reasonable efforts to keep the GDS
operational. However, certain technical difficulties, routine site
maintenance, upgrades and any other events outside the control of Gigahitz
may, from time to time, result in temporary GDS interruptions. Gigahitz
also reserves the right at any time and from time to time to modify or
discontinue, temporarily or permanently, functions of the GDS with or
without notice. You agree that Gigahitz shall not be liable to you or to
any third party for any of the direct or indirect consequences of any
modification, suspension, discontinuance of or interruption to the GDS.
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Section 3.04
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Only you may access the GDS using your Username. All content
available through the GDS is the property of Gigahitz or its licensors and
is protected by copyright and other intellectual property laws. Content
received through the GDS may be used for your personal, non-commercial use
only.
(a) You understand and agree that you do not obtain and will not exercise
or attempt to exercise any copyright or other intellectual property rights,
worldwide, in or to any content you obtain through the GDS.
(b) You agree to indemnify and hold harmless Gigahitz, its successors,
assigns, members and licensors for your failure to comply in any respect
with this Section 3.04.
(c) This Section 3.04 shall survive termination of this Agreement.
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ARTICLE IV.
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FEES
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Section 4.01
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If you wish to use the GDS, you will be asked by Gigahitz to
supply certain information applicable to your purchase, including, without
limitation, credit card and other information. You understand that any such
information will be treated by Gigahitz in the manner described in our Privacy Policy. You represent that all
information that you provide to Gigahitz will be accurate, current and
complete. By registering for the GDS, you agree to pay all charges incurred
by you or any users of your account and/or credit card (or other applicable
payment mechanism) at the price(s) in effect when such charges are
incurred. The fees, charges and payments hereunder do not include, and you
are solely responsible for paying, any taxes, duties, government levies or
other charges imposed by a taxing or other regulatory authority relating to
your use of the GDS.
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Section 4.02
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(a) GIGAHITZ RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS
FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR
SEPARATE CHARGES FOR CONTENT OR SERVICES PROVIDED BY GIGAHITZ, EFFECTIVE
IMMEDIATELY UPON POSTING NOTICE OF SUCH CHANGES ON THE SITE. IF ANY SUCH
CHANGE IS UNACCEPTABLE TO YOU, YOU MAY CANCEL YOUR USE OF THE GDS, AS
PROVIDED IN SECTION 3.02. YOUR CONTINUED USE OF THE GDS FOLLOWING THE
EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL
CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
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(b) ALL SALES ARE FINAL.
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Section 4.03
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In the event you purchase an item for download from the GDS
and its delivery fails in whole or in part, you agree to notify Gigahitz by
email, within fifteen (15) days of such failed delivery, at the following
address: customerservice@Gigahitz.com.
Upon receipt of your timely notification, Gigahitz will deliver a
“Replacement Download” of the item you purchased, if such item is still
available. If the item you purchased is no longer available at that time, Gigahitz
will offer you one of the two remedies set forth in Section 4.05, below.
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Section 4.04
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If, between the time you render payment for an item from the GDS
and the time you attempt to download the item, the Merchant has modified
that item in any way, YOU AGREE TO ACCEPT THE ITEM AS MODIFIED BY THE
MERCHANT. By choosing to download a purchased item at a later time, you
understand and hereby assume the risk that the Merchant may modify the
item, and you agree that you shall have no right to demand the item in any
other form or version.
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Section 4.05
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If, between the time you render payment for an item from the GDS
and the time you attempt to download the item, the Merchant has deleted
that item, Gigahitz in its sole discretion will provide you with one of the
following remedies:
(a) Gigahitz may provide you with a comparable item from the same Merchant,
if available; or
(b) Gigahitz will credit your account with Download Purchase Credits,
pursuant to Section 4.05 of the USA, in the amount of your purchase price.
(c) IN NO CASE WILL GIGAHITZ ISSUE CASH REFUNDS FOR PURCHASES FROM THE GDS.
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ARTICLE V.
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DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
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Section 5.01
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You agree that you have read and you accept Sections 1.10 and 1.11
of the USA hyperlink which, along with each and every other provision of
the USA, are fully incorporated herein. YOUR USE OF THE GDS IS ENTIRELY AT
YOUR OWN RISK.
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ARTICLE VI.
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MISCELLANEOUS
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Section 6.01
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All notices required to be sent to Gigahitz under this
Agreement shall be in writing and shall be sent by certified mail, return
receipt requested, postage paid, or by overnight delivery service, to Gigahitz
Ltd., 25 The Waterfront, Sovereign Harbour, Eastbourne, East Sussex BN23
5UZ Attention: Legal.
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Section 6.02
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Your rights under this Agreement are not assignable and any
attempt by your creditors to obtain an interest in your rights under this
Agreement, whether by attachment, levy, garnishment or otherwise, renders
this Agreement voidable at Gigahitz’s option.
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Section 6.03
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This Agreement is binding on the Parties and their respective
heirs, legatees, executors, successors and assigns. Except for Policies and
other agreements incorporated by reference herein (including but not
limited to the USA), this Agreement is the entire agreement between the Parties
and supersedes all prior written or oral agreements between the Parties
relating to the subject matter hereof. If any portion of this Agreement is
found to be void or unenforceable, the remaining portion shall be
enforceable with the invalid portion removed, giving all reasonable
construction to permit the essential purposes of the Agreement to be
achieved. The Parties’ various rights and remedies hereunder shall be
construed to be cumulative.
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Section 6.04
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This Agreement shall be deemed to have been made in the United Kingdom, and it shall be governed by the substantive laws of the United Kingdom without
regard to any applicable conflict of laws provisions.
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Section 6.05
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Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law. Nothing in this
Agreement shall be construed or deemed to create any partnership, agency,
joint venture, employment or franchise relationship between the Parties.
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Section 6.06
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Each Party hereto agrees to execute all further and additional
documents as may be necessary or desirable to effectuate and carry out the
provisions of this Agreement.
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Section 6.07
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Captions and headings used in this Agreement are for purposes
of convenience only and shall not be deemed to limit, affect the scope,
meaning or intent of this Agreement, nor shall they otherwise be given any
legal effect.
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Section 6.08
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No breach of this Agreement by Gigahitz shall be deemed
material unless the Party alleging such breach shall have given Gigahitz
written notice of such breach, and Gigahitz shall fail to cure such breach
within thirty (30) days after its receipt of such notice.
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Section 6.09
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You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related to use of
the GDS must be filed within one (1) year after such claim or cause of
action arose or be forever barred.
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Last Updated: 01/08/2007
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