This version in effect since December 22, 2006
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE HIP DIGITAL MUSIC DOWNLOAD SERVICE.
THIS AGREEMENT EXEMPTS HIP DIGITAL MEDIA INC. AND OTHER PERSONS FROM LIABILITY, AND CONTAINS
IMPORTANT PROVISIONS THAT YOU SHOULD READ. BY SELECTING THE “I AGREE” BUTTON OR BY ACCESSING
AND USING THE MUSIC DOWNLOAD SERVICE, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ,
UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH)
THIS AGREEMENT, WITHOUT LIMITATION OR QUALIFICATION, YOU MAY NOT ACCESS OR USE THE MUSIC DOWNLOAD SERVICE.
THE MUSIC DOWNLOAD SERVICE IS AVAILABLE ONLY IN THE UNITED STATES. IF YOU ARE NOT IN THE UNITED STATES,
YOU MAY NOT USE OR ATTEMPT TO USE THE SERVICE.
1. Your Acceptance of this Agreement
This Agreement is a binding contract between you and Hip Digital Media Inc. (“Hip Digital”)
regarding your access to and use of the Hip Digital music download service accessible through
the website at www.hipdigital.com (the “Website”) and all sound recordings, music videos,
artwork, and other materials, information and data available through the Website (collectively, the “Content”).
In this Agreement, the Website, the Content, and all related systems and services are
collectively called the “Service”. This Agreement also provides benefits to Hip Digital’s
related entities, service providers, suppliers, licensors, and other persons (and for the
purpose of this Agreement, “person” includes natural persons and any type of incorporated
or unincorporated entity). Each time you use the Service you signify your agreement, without
limitation or qualification, to be bound by this Agreement as amended from time to time. IF
YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
2. Changes to this Agreement
Hip Digital may in their discretion change, supplement, or amend this Agreement from time to time
effective immediately by posting a revised Agreement on the Website. You will check and review this
Agreement periodically to ensure that you are familiar with the most current version. By using the
Service after a revised Agreement has been posted on the Website, you signify your acceptance and
agreement, without limitation or qualification, to be bound by the revised Agreement. If you do not
agree to (or cannot comply with) the revised Agreement, you may not use the Service. You may not change,
supplement, or amend this Agreement in any manner.
3. Scope of Agreement
This Agreement governs your use of the Service, is the entire agreement between you and Hip Digital
regarding your access to and use of the Service, and supersedes all previous agreements
(written, oral or otherwise) between you and Hip Digital regarding your access to and use of the Service.
This Agreement is in addition to and supplements any written agreements that you may have with Hip Digital
(now or in the future) regarding your dealings Hip Digital generally, including the downloading of sound
recordings from other websites operated by Hip Digital. If there is any inconsistency or conflict between
the provisions of this Agreement and the provisions of any other agreements that you have with Hip Digital,
the provisions of this Agreement will govern regarding access to and use of the Service, and the other
agreements will govern regarding all other matters.
4. Location and Age Requirements for Use of the Service
(a) Location: The Service may be accessed and used only by natural persons located in the United States
and is not available in any other location . If you are not located in the United States, you may not
access or use the Service. The Service may use technologies to verify your location, including determining the
IP address and location of your computer and the billing address of your credit card (if a credit card number is
provided by you).
(b) Age: The Service may be used only by individuals aged 13 years or older. You must be at least the legal age of
majority in your State or territory to agree to this Agreement on your own behalf and to register to use the Service.
If you are 13 or older but under the legal age of majority, you must accept this Agreement and also your parent or
legal guardian must read and accept this Agreement for your benefit and approve your use of the Service.
If you are a parent or guardian accepting this Agreement for the benefit of your child, you are fully responsible
and liable (legally and financially) for your child’s use of the Service and compliance with this Agreement.
(c) Confirmation: By agreeing to this Agreement (whether for your own benefit or for the benefit of your child),
you represent and warrant that you are located in the United States and you have read, understood and agree to be
bound by this Agreement.
5. Registration, Accounts and Access Codes
To access and use parts of the Service, you are required to register and provide certain information
(“User Information”) and create an account on the Service (the “Account”) using a personal username and
password (collectively “Access Codes”). Hip Digital is under no obligation to approve your application for
registration or allow you to create an Account. Hip Digital may refuse your application for registration in
their discretion without any liability to you or any other person.
You represent, warrant, and certify that all User Information is valid, true, accurate, current, and complete at the
time you submit it, and that you will maintain and promptly update User Information to keep it valid, true, accurate,
current and complete. Hip Digital and other persons will rely upon the User Information. You will be fully responsible
for all loss, damage, liabilities, obligations, and additional costs that you, Hip Digital, or any other person may
incur as a result of your submission of any invalid, false, incorrect or incomplete User Information, or your
failure to update User Information promptly after any changes. Hip Digital is not under any obligation to verify
any User Information you submit, but may do so in their discretion; and you hereby consent to Hip Digital making
all inquiries and investigations as they in their discretion consider appropriate to verify the User Information.
If your application for registration is accepted: (a) you are fully responsible and liable for the confidentiality
and security of your Access Codes and Account, and all uses and misuses of your Access Codes and Account; (b) you
will keep your Access Codes secure and confidential at all times and not disclose your Access Codes to any other
person or permit any other person to use your Access Codes or Account; (c) you will ensure that all uses of your
Access Codes and Account comply with this Agreement; and (d) you will immediately notify Hip Digital by email to
email@example.com if you know or suspect that your Access Codes have become known to or used by any other
person or if your Account has been accessed or used by any other person. You will not attempt to access or use
any other person’s account or use any other person’s username or password.
Hip Digital may in their discretion cancel or suspend your Access Codes and Account at any time without any notice
or liability to you or any other person. Hip Digital is not under any obligation to verify the actual identity or
authority of any person using your Access Codes or Account, but may in their discretion require proof of the identity
of any person seeking to access and use your Access Codes and Account, and may deny access to and use of your Account
or refuse to accept or act upon any communication if they are not satisfied with such proof. Hip Digital may act upon
any communication that is given with the use of your Access Codes.
6. Permitted and Prohibited Uses
The Service (including the Website and all Downloads (see Section 9) and other Content you obtain through the Service)
is made available to you for your lawful, personal, non-commercial use for entertainment purposes only, only in the
manner described expressly in this Agreement (including the Usage Rules set forth below), and strictly in accordance
with all applicable federal, state, and local laws. You may not use the Service for any other reason or purpose or in
any other manner, or permit or assist any other person to do so. Unauthorized use of the Service may result in civil
and criminal liability.
Without limiting the generality of the foregoing, the following rules apply to your use of the Service or any part of it (including the
Website and all Downloads (see Section 9) and other Content you obtain through the Service):
You will comply with all applicable federal, provincial, and local laws relating to your access to and use of the Service, and you will
access and use the Service in a manner that is respectful of and protects the rights (including copyright and other intellectual
property rights) of the owners of the Service.
7. Objectionable/Explicit Material
You acknowledge that the Service may include Content that you may consider offensive, indecent, or otherwise
objectionable, and which may or not be identified as having explicit language. Certain Content may be identified
with a “Parent Advisory” or ���Explicit Language” warning. Information regarding those warnings may be obtained
from the websites: www.parentalguide.org and www.cria.ca/parentaladvisory.php. Hip Digital is not responsible
or liable to you or any other person for any Content that you find objectionable, even if it does not have a warning.
8. Technical Requirements
To access and use the Service or the Content obtained through the Service, you will require Internet access and
certain computer hardware, operating systems, software, and portable music players that are compatible with the
Service and comply with the Usage Rules (see Section 9) and Security Components (see Section 10). Your use of C
ontent may require Internet communications with the Service and the ongoing involvement of Hip Digital, or other
persons. Information regarding minimum technical and compatibility requirements is available on the Website,
and may be changed by Hip Digital from time to time. You may be required to update or upgrade your hardware,
operating systems, software, and portable music players from time to time in order to access and use the
Service and the Content. You are solely responsible and liable for:
(a) obtaining, paying for, configuring, maintaining, updating, and protecting from loss and damage
(including virus protection and regular data backup) all compatible equipment and services necessary
for you to access and use the Service; and
(b) maintaining and protecting from loss and damage (including virus protection and regular data backup)
all Content you obtain through the Service.
9. Usage Rules
You will access and use the Service and the Content (including sound recordings and music videos) you obtain
through the Service strictly in accordance with the following rules and restrictions established by Hip Digital,
and other owners of the Content (the “Usage Rules”):
(a) Personal/Non-Commercial Use License: The Service and the Content are licensed, not sold, to you for your
lawful, personal, non-commercial use for entertainment purposes only, strictly in accordance with the Usage
Rules and the other provisions of this Agreement. The license is not assignable, transferable, or sublicensable.
You will not share the Service or the Content with any other person or authorize or permit any other person to
use the Service or the Content in any way or for any reason or purpose whatsoever.
(b) Samples: A “Sample” is a sound recording or music video (or portion thereof)
that the Service makes available for promotional purposes only for you to play using
streaming technology while you are accessing the Website. You will not access or
use a Sample in any other way or for any other reason or purpose whatsoever, including
without limitation attempting to capture, copy, or download a Sample.
(c) Downloads: A “Download” is a copy of a sound recording or music video that the
Service makes available for you to obtain using a valid promotional code (see Section
11). You will access and use each Download as follows:
(i) Download PC: You may download and save each Download to the hard drive of a
personal computer (a traditional consumer desktop or notebook computer intended
for use by an individual user) located in the United States that you own and use
for your personal, non-commercial use (the “Download PC”), and play the Download
on the Download PC. Except as expressly set forth in these Usage Rules, you will
not copy, transfer, or distribute Downloads from the Download PC to any other computer,
device, or media.
(ii) Secondary PCs: You may copy each Download from the Download PC to the hard
drive of up to two (2) other compatible personal computers located in the United
States that you own and use for your personal, non-commercial use (each a “Secondary
PC”), and you may play the Download on each Secondary PC. Except as expressly set
forth in these Usage Rules, you will not copy, transfer, or distribute Downloads
from a Secondary PC to any other computer, device, or media.
(iii) Transfers to Portable Devices: You may copy each Download from the Download
PC or a Secondary PC an unlimited number of times to up to three (3) compatible
portable consumer electronics devices located in the United States that you own
and use for your personal, non-commercial use for entertainment purposes only (each
a “Portable Device”). You will not copy, transfer, or distribute Downloads from
a Portable Device to any other device, computer, or media.
(iv) Burning to Media: You may permanently copy (burn) each Download in uncompressed
form from the Download PC or a Secondary PC up to five (5) times, in the aggregate,
to compatible, blank, recordable CD-R or CD-RW compact discs (collectively, “Media”)
that you own for your personal, non-commercial use for entertainment purposes only.
You will not copy, transfer, or distribute Downloads from Media to any computer
(including the Download PC or a Secondary PC), device, or other media.
(v) Additional Uses: Certain Downloads may be transferred to an additional number
of Portable Devices or copied (burned) to Media an additional number of times, but
only if those additional uses are expressly permitted by the Security Components
(see Section 10) included in the Download in the format obtained from the Service
and are expressly indicated when the Usage Rules for the Download are displayed
by compatible computer player software authorized by Hip Digital.
(vi) General: Downloads may be used in their original format only. Downloads may
not be used as a musical ringer (ringtone, ringtune, master tone, etc.).
The Usage Rules apply regardless of whether other rules have been associated with
the Downloads or other Content by any other person.
Hip Digital may in their discretion change the Usage Rules from time to time effective
immediately by posting revised Usage Rules on the Website. Except as expressly set
forth in the Usage Rules, you will not access or use (including reproduce, copy,
or modify) the Service (including Downloads and other Content) in any way or for
any reason or purpose whatsoever. All rights not expressly granted to you in this
Agreement are reserved to Hip Digital, and their licensors (including the owners
of copyright in sound recordings, music videos, artwork, performances, and underlying
musical compositions). Without limiting the generality of any of the foregoing,
you are not granted any commercial, sale, resale, syndication, reproduction, distribution,
retransmission, or promotional use rights for the Downloads, including without limitation
any rights for uses that require a synchronization or public performance license
with respect to the musical compositions underlying Downloads.
You are solely responsible for protecting Downloads from loss, damage, or destruction;
Hip Digital is not obligated to refund or replace Downloads that are lost, damaged
or destroyed, regardless of the cause.
10. Security Components and Watermarks
The Service (including Downloads and other Content) contains: (a) technologies (including
notices, proprietary codes, means of identification, authentication measures, and
rights management information) designed to protect against unauthorized access or
use and to control your use of Downloads and other Content in accordance with applicable
Usage Rules (the “Security Components”); and (b) visible and non-visible identification,
marks and codes that identify you as the person that downloaded the Content from
the Service and specify certain applicable Usage Rules and other information (the
“Watermarks”). Security Components and Watermarks are an inseparable part of each
Download. The Service may also automatically install Security Components on your
Download PC, your Secondary PCs, and your Portable Devices to register those computers
and devices with the Service.
You will not attempt to, or authorize or assist any other person to, reverse engineer,
decompile, disassemble, decrypt, alter, change, remove, interfere with, obscure,
destroy or otherwise circumvent or tamper with the Security Components or the Watermarks
or the limitations or restrictions on your access to or use of the Service and the
Content at any time, by any means (including without limitation by hacking, password
mining or similar technologies or devices), or for any reason or purpose whatsoever
(including without limitation for the purpose of disguising or changing the source
or ownership of the Content).
Downloads may not be used in conjunction with any software application (including
a CD burning application), personal computer, or portable device that does not recognize
and respect the Security Components and enforce the Usage Rules.
11. Promotional Codes and Account Credits
To obtain a Download from the Service, you will be required to redeem a valid promotional
code issued by Hip Digital. Use of promotional codes is subject to this Agreement
and may also be subject to additional terms and conditions imposed by Hip Digital.
Promotional codes and unused account credits are not refundable, transferable, exchangeable,
or convertible to cash. Unused promotional codes will expire on the date specified
in the terms and conditions applicable to the promotional code, and if there is
no such expiry date then unused promotional codes will expire three (3) months after
the date the promotional code was issued. Unused account credits will expire on
the date specified in the terms and conditions applicable to the promotional code
used to create the credits, and if there is no such expiry date then the unused
account credits will expire six (6) months after the date on which the promotional
code used to create the credit was issued. Hip Digital is not responsible for any
lost or stolen promotional codes. Hip Digital may refuse to honour or accept any
promotional code that was not obtained from Hip Digital lawfully and in accordance
with the applicable terms and conditions.
12. Misprints/Errors, Orders, Availability
Hip Digital strive to provide current information on the Website, nevertheless misprints
or other errors may occur. Accordingly Hip Digital reserves the right to change
the Website and the Content from time to time without any notice or liability to
you or any other person. Advertisements for Downloads on the Web Site are invitations
for orders, and are not offers. Your properly completed and delivered order form
constitutes your request to redeem promotional codes or credits for the ordered
Downloads. Once you begin to download a Download, the Download cannot be cancelled,
returned, or exchanged. If an ordered Download is not available for any reason,
your sole and exclusive remedy will be a replacement of the Download by a different
Download of similar value.
Hip Digital will collect, use and disclose your personal information in accordance
at www.hipdigital.com and which may be changed from time to time by Hip Digital
in their discretion without any notice or liability to you or any other person by
this Agreement, and each time you use the Service, you consent to the collection,
use, and disclosure of your personal information in accordance with the Privacy
Policy as it then reads.
14. Contests and Promotions/Advertising
All contests and promotions available through the Service are governed by specific
applicable terms and conditions.
15. Ownership of the Service
You acknowledge and agree that the Service (including the Website and all Downloads
and other Content available on or through the Service, and the design, structure,
selection, coordination, compilation, expression, “look and feel”, and arrangement
of the Website and Content) is exclusively owned by Hip Digital and their licensors,
and is protected by Canadian and international copyright, trademark, and other intellectual
property and fair competition laws. Your use of the Service does not transfer to
you any ownership or other rights in the Service or the Content. Your access to
and use of the Service and all Downloads and other Content you obtain through the
Service are limited by the provisions of this Agreement (including the Usage Rules)
and applicable law (including copyright and other intellectual property laws).
16. Trademarks and Patents HIP DIGITAL, GENERATION DOWNLOAD, DOWNLOAD GENERATION,
HIP TUNES, and HIP & Design (the Hip Digital logo) are trademarks, service marks,
and trade names owned or licensed by Hip Digital. Other product and company names,
slogans, and logos appearing on the Service may be registered or unregistered trademarks,
service marks, trade names, and logos of their respective owners. Any use of the
trademarks, service marks, trade names, or logos displayed on the Service (collectively
“Marks”) is strictly prohibited. Certain aspects of the Service (including Security
Components and Watermarks) may be the subject of issued patents or pending patent
applications. Nothing appearing on the Service or elsewhere will be construed as
granting, by implication, estoppel, or otherwise, any licence or right to use any
Marks or any patents or patented technologies.
17. Other Sites
For your convenience, the Service may provide links to other Internet sites or resources
and businesses operated by other persons (collectively “Other Sites”). Other Sites
are independent from the Service, and Hip Digital has no responsibility or liability
for or control over Other Sites, their business, goods, services, or content. Your
use of Other Sites and your dealings with the owners or operators of Other Sites
are at your own risk, and you will not make any claim against Hip Digital arising
from, connected with, or relating to your use of Other Sites or your dealings with
the owners or operators of Other Sites. As between you and Hip Digital, the provisions
of this Agreement under the section headed Disclaimers, Liability Exclusions/Limitations
and Indemnity (Section 19) apply, with all necessary modifications, to your access
to and use of any Other Sites and their business, goods, services and content.
18. Unsolicited Submissions
Hip Digital does not accept or consider unsolicited ideas, suggestions, or other
materials relating to the Service. The purpose of this policy is to avoid potential
misunderstandings or disputes. Accordingly, please do not send any unsolicited ideas,
suggestions, or other materials (“Submissions”) to Hip Digital. If you do send any
Submissions to Hip Digital, you automatically grant (or warrant that the owner of
the Submissions grants) Hip Digital and their respective successors and assigns
a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide,
assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt,
publish, translate, create derivative works from, distribute, perform, display and
otherwise exploit the Submissions or any ideas, concepts, know-how or techniques
associated with the Submissions for any reason or purpose whatsoever, commercial
or otherwise, using any form, media or technology now known or later developed,
without providing compensation to you or any other person, without any liability
whatsoever, and free from any obligation of confidence or other duties, and you
agree, represent and warrant that all moral rights in the Submissions are waived
in favour of Hip Digital and their respective successors and assigns.
19. Disclaimers, Liability Exclusions/Limitations and Indemnity
HIP DIGITAL DOES NOT ACCEPT ANY LIABILITY FOR YOUR USE OF THE SERVICE. YOU ACCESS
AND USE THE SERVICE AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND
“AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING WITHOUT LIMITATION IMPLIED REPRESENTATIONS,
WARRANTIES OR CONDITIONS OF OR RELATING TO ACCURACY, ACCESSIBILITY, AVAILABILITY,
COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE,
MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SECURITY, SEQUENCE,
SERVICE, TIMELINESS, TITLE, UNINTERRUPTED SERVICE, VIRUSES OR WORKMANLIKE EFFORT,
ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY HIP DIGITAL TO THE FULLEST
EXTENT PERMITTED BY LAW. THERE WILL NOT BE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS
CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HIP DIGITAL MAKES NO REPRESENTATION,
WARRANTY, CONDITION OR GUARANTEE THAT:
(A) THE SERVICE WILL BE COMPATIBLE WITH YOUR COMPUTER, PORTABLE MUSIC PLAYER, OR
RELATED EQUIPMENT AND SOFTWARE;
(B) THE SERVICE WILL BE AVAILABLE OR WILL
FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL
(C) THE SERVICE WILL MEET YOUR REQUIREMENTS;
(D) THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SEQUENTIAL, ACCURATE, AUTHENTIC,
COMPLETE OR NOT OFFENSIVE OR OBJECTIONABLE TO YOU OR OTHER PERSONS;
(E) CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH ACCESS TO OR USE OF THE SERVICE
(F) ACCESS TO AND USE OF THE SERVICE WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS
OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS AND WILL NOT INFRINGE THE RIGHTS (INCLUDING
INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; HIP DIGITAL DISCLAIMS ALL LIABILITY
REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
THE INTERNET IS NOT A SECURE MEDIUM, MAY BE SUBJECT TO INTERRUPTION AND DISRUPTION,
AND INADVERTENT OR DELIBERATE BREACHES OF SECURITY AND PRIVACY. THE SERVICE MAY
BE AFFECTED BY NUMEROUS FACTORS BEYOND THE CONTROL HIP DIGITAL (SUCH AS YOUR COMPUTER
EQUIPMENT AND INTERNET ACCESS), AND MAY NOT BE CONTINUOUS OR UNINTERRUPTED, SECURE
OR PRIVATE. YOU PROVIDE USER INFORMATION AT YOUR OWN RISK, AND HIP DIGITAL HEREBY
DISCLAIM ALL LIABILITY TO YOU AND ANY OTHER PERSON FOR ANY LOSS OR DAMAGE ARISING
FROM, CONNECTED WITH, OR RELATING TO THE UNAUTHORIZED ACCESS TO, OR USE OR DISCLOSURE
OF, ANY USER INFORMATION.
IF YOU ARE NOT SATISFIED WITH THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO
STOP USING THE SERVICE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL HIP DIGITAL EVER BE LIABLE TO YOU
OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE
OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE SERVICE
OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF DATA, BUSINESS, MARKETS,
SAVINGS, INCOME, PROFITS, USE, PRODUCTION, REPUTATION OR GOODWILL, ANTICIPATED OR
OTHERWISE, OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT,
TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY). YOU HEREBY RELEASE,
REMISE, AND FOREVER DISCHARGE HIP DIGITAL FROM ALL EXCLUDED LIABILITIES SET FORTH
LIABILITY LIMITATION AND RELEASE
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE LIABILITY OF
HIP DIGITAL TO YOU OR ANY OTHER PERSON UNDER ANY THEORY OF LIABILITY (WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), EVER EXCEED
THE LESSER OF: (A) THE AMOUNT (IF ANY) YOU PAID FOR THE DOWNLOAD IN ISSUE (IF ANY),
OR (B) $5 (USA) IF THERE IS NO SUCH PAYMENT OR DOWNLOAD. YOU HEREBY RELEASE, REMISE,
AND FOREVER DISCHARGE HIP DIGITAL FROM ALL LIABILITY IN EXCESS OF THE FOREGOING
YOU WILL INDEMNIFY, DEFEND AND HOLD HIP DIGITAL HARMLESS FROM AND AGAINST ALL CLAIMS,
DEMANDS, SUITS, LIABILITIES, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING LAWYER’S
FEES AND DISBURSEMENTS AS BETWEEN SOLICITOR AND OWN CLIENT) SUFFERED OR INCURRED
BY HIP DIGITAL ARISING FROM, CONNECTED WITH, OR RELATING TO YOUR ACCESS TO OR USE
OF THE SERVICE, YOUR BREACH OF THIS AGREEMENT, OR ANY WRONGFUL CONDUCT BY YOU OR
ANY PERSON FOR WHOM YOU ARE RESPONSIBLE UNDER THIS AGREEMENT OR AT LAW. YOU WILL
ASSIST AND CO-OPERATE AS FULLY AS REASONABLY REQUIRED BY HIP DIGITAL IN THE DEFENCE
OF ANY SUCH CLAIM OR DEMAND.
YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK
AND LIABILITY. ADVICE AND INFORMATION PROVIDED BY HIP DIGITAL, WHETHER ORAL OR WRITTEN,
WILL NOT CREATE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OR VARY OR
AMEND THIS AGREEMENT (INCLUDING THIS SECTION 19), AND YOU MAY NOT RELY UPON ANY
SUCH ADVICE OR INFORMATION.
THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR LIABILITIES IS PROHIBITED BY
LAW IN SOME JURISDICTIONS. IN THOSE JURISDICTIONS, THE LIABILITY OF HIP DIGITAL
IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. APPLICATION AND DEFINITIONS
THIS SECTION 19 APPLIES REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING
(INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY HIP DIGITAL OR ANY PERSON
FOR WHOM HIP DIGITAL IS RESPONSIBLE, AND EVEN IF HIP DIGITAL HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED. IN THIS SECTION 19: (a) REFERENCES
TO “HIP DIGITAL” MEANS HIP DIGITAL AND EACH OF THEM, JOINTLY AND SEVERALLY, AND
EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS,
SERVICE PROVIDERS, SUPPLIERS, SUB-CONTRACTORS, AND LICENSORS, AND ALL OTHER RELATED,
ASSOCIATED, OR CONNECTED PERSONS, JOINTLY AND SEVERALLY; (b) REFERENCES TO “SERVICE”
INCLUDE THE WEBSITE AND ALL DOWNLOADS AND OTHER CONTENT, PRODUCTS AND SERVICES AVAILABLE
ON, THROUGH OR IN CONNECTION WITH THE SERVICE; AND (c) REFERENCES TO “YOU” MEANS
YOU AND YOUR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, PERMITTED ASSIGNS, AND
Hip Digital may in their discretion from time to time, change, suspend or terminate,
temporarily or permanently, the Service (including the Website and Content) or any
part of it (including removing Content from the Service), or terminate your permission
to use the Service and this Agreement, without any notice or liability to you or
any other person. If you breach any provision of this Agreement, you may no longer
use the Service. If you withdraw your consent to the collection, use, and disclosure
time to time), you may no longer use the Service.
If this Agreement or your permission to access or use the Service or any part of
it is terminated for any reason, then: (a) your ability to use Downloads you have
previously obtained from the Service may be limited; and (b) this Agreement and
all other then existing agreements between you and Hip Digital will continue to
apply and be binding upon you regarding your prior access to and use of the Service,
and anything connected with, relating to or arising therefrom.
21. Enforcement of this Agreement and Usage Rules
Hip Digital and their licensors (including without limitation owners of Downloads)
may take such technological and other measures and steps as they consider appropriate
in their discretion to enforce this Agreement (including the Usage Rules) and detect
and prevent the breach of this Agreement or any applicable laws, including without
limitation using technological measures to monitor and record your use of the Service
and Content and your compliance with the Usage Rules and your communications with
Hip Digital, and reporting potential violations of the Usage Rules Policy or applicable
laws to law enforcement authorities and the owners of the Content, all without any
notice or liability to you or any other person. Hip Digital will co-operate fully
with law enforcement authorities and the owners of the Content in the investigation
of suspected unlawful conduct (including unauthorized file sharing of Downloads),
including without limitation by disclosing your User Information and information
regarding your use of the Service. Any failure by Hip Digital to enforce this Agreement,
for whatever reason, will not be construed as a waiver of any preceding or subsequent
breach of this Agreement. Hip Digital will not be liable to you for any failure
to enforce this Agreement.
You acknowledge that your breach of this Agreement will result in irreparable harm,
loss and damage to Hip Digital and others for which they could not be adequately
compensated by an award of monetary damages. You agree that the event of any actual
or threatened breach of this Agreement, and in addition to any and all remedies
available to Hip Digital at law or in equity, Hip Digital will be entitled as a
matter of right to judicial relief by way of a restraining order, interim, interlocutory
or permanent injunction, or order for specific performance, and you will not oppose
the granting of any such judicial relief and hereby waive all defences to the strict
enforcement of this Agreement and such judicial relief.
The specific rights and remedies of Hip Digital under this Agreement are cumulative
and not exclusive of any other rights or remedies to which they may be lawfully
entitled under this Agreement or at law or equity, and Hip Digital will be entitled
to pursue all of their respective rights and remedies concurrently, consecutively
and alternatively. No consent or waiver by Hip Digital to or of any breach by you
of this Agreement will be: (a) effective unless in writing and signed by Hip Digital;
or (b) deemed or construed to be a consent to or waiver of a continuing breach or
any other breach of this Agreement.
22. Governing Law and Dispute Resolution
Although the content delivered in connection with the Service may reside on servers
in either the United States or Canada and the Service is controlled by Hip Digital
from Vancouver, British Columbia, Canada, you agree to comply with all local, state
and federal laws that apply to your use of the Service. Notwithstanding the foregoing,
this Agreement is governed by the laws of British Columbia and applicable federal
laws of Canada, excluding any rules of private international law or the conflict
of laws that would lead to the application of any other laws and excluding the United
Nations Convention on Contracts for the International Sale of Goods. Any dispute
between you and Hip Digital or any other person arising from, connected with or
relating to the Service (including the Website, Downloads and other Content), this
Agreement, or any related matters (“Disputes”) will be resolved before the Supreme
Court of British Columbia sitting in the City of Vancouver, and you and Hip Digital
each hereby irrevocably submit and attorn to the original and exclusive jurisdiction
of that court in respect of all Disputes.
23. Other Matters
If any provision of this Agreement is held to be invalid or unenforceable for any
reason, then the provision will be deemed to be severed from this Agreement and
the remaining provisions will continue in full force and effect without being impaired
or invalidated in any way, unless as a result of any such severance this Agreement
would fail in its essential purpose.
Notwithstanding any other provision of this Agreement, Sections 6, 8, 9, 10, 13,
15, 16, 17, 18, 19, 21, 22, and 23 of this Agreement, and all other provisions necessary
for their interpretation or enforcement, will survive indefinitely after the termination
of this Agreement and remain in full force and effect.
This Agreement enures to the benefit of and is binding upon Hip Digital and their
respective successors and assigns and related persons, and you and your heirs, executors,
administrators, successors, permitted assigns, and personal representatives. You
may not assign this Agreement or your rights and obligations under this Agreement
without the prior written consent of Hip Digital, which consent may be withheld
in their discretion. Hip Digital may assign this Agreement and their respective
rights and obligations under this Agreement without your consent.
The Parties are independent contractors, and nothing in this Agreement or done pursuant
to this Agreement will create or be construed to create a partnership, joint venture,
agency, employment, or other similar relationship between the Parties.
Any rights not expressly granted by this Agreement are reserved to Hip Digital and
This Agreement was last changed effective August 29, 2008.