THE TERMS AND CONDITIONS SET FORTH BELOW (THE "TERMS") GOVERN YOUR USE OF THIS SITE LOCATED AT WWW.THEORY11.COM ON THE WORLD WIDE WEB (THE "SITE") OF THEORY11 ("theory11"), AND ARE LEGALLY BINDING ON YOU. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THE SITE. YOUR USE OF THE SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
1) Your Acceptance
a) By using or visiting the theory11 website at the URL http://www.theory11.com or The Wire (theory11 marketplace) or any other affiliated website, or any THEORY11 products, software, data feeds, and services provided to you on, from, or through the theory11 website, including The Wire (collectively the "Service") you signify your agreement to abide by and by bound by
i) these terms and conditions (the "Terms of Service"), ii) the theory11 Media Guidelines, found at http://www.theory11.com/media-guidelines.php, and
iii) theory11's privacy notice, found at http://www.theory11.com/privacy.php and incorporated herein by reference. If you do not agree to any of these terms and the theory11 privacy notice, please do not use the Service.
b) Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date versions of each of the aforementioned terms, guidelines, notices, policies and any other rules or policies posted at or linked to from the theory11 website. theory11 may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
a) These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. "Content" includes the text, software, scripts, graphics, photos, sounds, music, videos, documents, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of theory11, including but not limited to all products, software and services offered via the theory11 website and The Wire. "Products" mean products available for sale on the Site including, but not limited to, magic or cardistry tricks. Content and Products on the Service may have been created and/or produced by third parties and all Content or Products created or produced by theory11 will be specifically identified as such.
b) The Service may contain links to third party websites that are not owned or controlled by theory11. theory11 has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, theory11 will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve theory11 from any and all liability arising from your use of any third- party website.
d) Some Third Party Content may consist of advertisements, promotions, offers, solicitations to purchase goods and/or services, or other commercial interactions with third parties ("Third Party Correspondence"). Unless otherwise stated, any such Third Party Correspondence including the delivery of and the payment for goods and/or services, and any other term, condition, warranty or representation associated with such Third Party Correspondence is solely between you and the applicable third party. You acknowledge and agree that theory11 has no liability, obligation or responsibility for any such Third Party Correspondence.
3) theory11 Accounts
a) In order to access some features of the Service, you will have to create a theory11 and/or Artist Account on The Wire, the official theory11 marketplace. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You acknowledge and agree that you are solely responsible for any fees which may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You must notify theory11 immediately of any breach of security or unauthorized use of your account.
b) Although theory11 will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of theory11 or others due to such unauthorized use.
c) The Site and any content uploaded to the Site is available to be viewed by any person browsing the internet but only a person who has registered and created a theory11 account or Artist Account on The Wire is able to buy or sell Products, respectively. Additional Terms of Service apply to the sale and purchase of Products on The Wire and those Terms of Service are incorporated herein by reference.
4) General Use of the Service—Permissions and Restrictions
theory11 hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
a) You agree not to distribute in any medium any part of the Service or the Content without theory11's prior written authorization, unless theory11 makes available the means for such distribution through functionality offered by the Service.
b) You agree not to alter or modify any part of the Service.
c) You agree not to access Content through any technology or means other than the video playback pages of the Service itself or other explicitly authorized means theory11 may designate.
d) You agree not to use the Service for any of the following commercial uses unless you obtain theory11's prior written approval:
i) the sale of access to the Service;
ii) the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
iii) the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from theory11 appears on the same page and is of sufficient value to be the basis for such sales.
e) Prohibited commercial uses do not include:
i) uploading an original video to theory11, or
ii) any use that theory11 expressly authorizes in writing.
f) You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the theory11 servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, theory11 grants the operators of public search engines permission to use spiders to copy materials from publicly available portions of the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. theory11 reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
g) In your use of the Service, you will comply with all applicable laws.
h) In your use of the Service, you will not harass the other users of the Service or send them unsolicited messages for commercial purposes.
i) When using the Service or in your interactions with anyone in the Service, you will not use false information or present yourself as someone else.
j) You will not transmit or spread any virus or similar destruction device through the use of the Services.
k) theory11 reserves the right to discontinue any aspect of the Service at any time.
5) Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
a) The Content on the Service, including but not limited to documents, products, software and services, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to theory11, subject to copyright and other intellectual property rights under the law.
b) Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a "download" or similar link displayed by theory11 on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of theory11 or the respective licensors of the Content. theory11 and its licensors reserve all rights not expressly granted in and to the Service and the Content.
c) You may display the Content only on your personal computer, and copy and download the Content displayed on this site solely for that purpose, provided that:
i) Both the theory11 copyright notice (© 2013 theory11.com llc) and the permission notice, set forth in this paragraph, appear in the Content so displayed, copied or downloaded,
ii) Such display, copy or download is solely for your personal or internal informational use (that is, not distributed or otherwise transmitted outside of your home or company, or otherwise broadcast in any media), and
iii) Your use complies with any other license terms that are provided with respect to portions of the Content.
d) All rights to Content not explicitly granted to you under these terms are reserved to theory11. You acknowledge and agree that you have no right to create derivative works, publicly perform, or exercise any other rights not explicitly granted to you with respect to the Content.
e) You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
f) You understand that when using the Service, you will be exposed to Content from a variety of sources, and that theory11 is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against theory11 with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless theory11, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6) Your Content and Conduct
a) As a theory11 account holder you may submit Content to the Service, including videos and user comments. You understand that theory11 does not guarantee any confidentiality with respect to any Content you submit.
b) You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to theory11 all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
c) For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to theory11, you hereby grant theory11 a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and theory11's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that theory11 may retain, but not display, distribute, or perform, server copies of your videos or other Content that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
d) You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant theory11 all of the license rights granted herein.
e) theory11 does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and theory11 expressly disclaims any and all liability in connection with Content. theory11 does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and theory11 will remove all Content if properly notified that such Content infringes on another's intellectual property rights. theory11 reserves the right to remove Content without prior notice.
f) Under certain circumstances, you may offer through the theory11 website and/or The Wire to provide Content to theory11 under a royalty , revenue sharing, or some other agreement such as pursuant to The Wire Terms of Service. If so, both the terms of that agreement and these Terms apply.
7) Account Termination Policy
a) theory11 will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
b) theory11 reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. theory11 may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
c) theory11 reserves the right to terminate your ability to use the Site without prior notice for any reason whatsoever. Additionally, you agree to terminate your use of the Site upon request by theory11.
8) Digital Millennium Copyright Act
a) If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
theory11's designated Copyright Agent to receive notifications of claimed infringement is theory11 Attn: Notice of Infringement, 1664 Seignious Drive, Charleston, SC 29407; email: firstname.lastname@example.org. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to theory11 customer service through the "Contact Us" page or by other means. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. You also acknowledge, agree, and grant theory11 the right to publish your compliant or non- compliant takedown notice, regardless of any confidentiality marking, indication, or request on the face of the notice, as well as any other correspondence received from you relating to a DMCA takedown request or notice of claimed infringement.
b) Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
i) Your physical or electronic signature;
ii) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
iii) A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Charleston, South Carolina, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, theory11 may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at theory11's sole discretion. You also acknowledge, agree, and grant theory11 the right to publish your compliant or non- compliant counter-notice, regardless of any confidentiality marking, indication, or request on indication on the face of the notice, as well as any other correspondence received from you relating to a DMCA takedown request, notice of claimed infringement, or counter- notice.
9) Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THEORY11, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. THEORY11 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THEORY11 DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THEORY11 WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD- PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10) Limitation of Liability
IN NO EVENT SHALL THEORY11, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT THEORY11 SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. The Service is controlled and offered by theory11 from its facilities in the United States of America. theory11 makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless theory11, its parent corporation, officers, directors, employees and agents, 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: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that your Content or your use of theory11 Content caused damage to a third party; (v) any and all of the above, where such circumstance involved a different person using your Account and/or password. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
12) Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by theory11 without restriction.
theory11 does not monitor your data or transmissions, yet, theory11 does actively monitor accounts for system utilization. However, you agree that, in theory11's efforts to promote good citizenship within the Internet community, if theory11 becomes aware of inappropriate use of the Site or any theory11 service, theory11 may respond. You acknowledge that theory11 will report to law enforcement authorities any actions which may be considered illegal, as well as any reports it receives of such conduct. When requested, theory11 will cooperate fully with law enforcement agencies in any investigation of alleged illegal activity on the Internet.
You agree that: (i) the Service shall be deemed solely based in South Carolina; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over theory11, either specific or general, in jurisdictions other than South Carolina. These Terms of Service shall be governed by the internal substantive laws of the State of South Carolina, without respect to its conflict of laws principles. Any claim or dispute between you and theory11 that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Charleston, South Carolina. These Terms of Service, together with the Privacy Notice at http://www.theory11.com/privacy.php and any other legal notices published by theory11 on the Service, shall constitute the entire agreement between you and theory11 concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and theory11's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. theory11 reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND THEORY11 AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED
ADDITIONAL TERMS OF SERVICE
APPLICABLE TO SALES ON
THE WIRE - THEORY11 MARKETPLACE
16) These Terms of Service apply to all Buyers and Sellers of Product on The Wire (theory11 marketplace), in addition to the Terms of Service applicable to the Service and the Site.
17) By creating an account, you acknowledge your consent and desire for theory11 to send email notifications and updates from time to time, including but not limited to sales reports to Sellers, updates to Sellers on the sales performance of their Product, updates to Buyers on additional merchandise for sale of possible interest to the Buyer, artist related news and events, and other items in the discretion of theory11.
18) You do not have to pay a fee to create an account. You do not have to pay a fee to sell Products on the Site. If you are a Buyer of a Product, you will pay a fee to buy the right to use that Product subject to the terms and conditions of sale posted by the Seller. If you are a Seller, you will receive the fee paid by the Buyer (less the amounts payable to theory11 as noted in these Terms of Service) collected by theory11 for each sale of your Product to a Buyer.
19) The Seller shall initially suggest an asking price for all Products to be offered on the Site. theory11 will take suggested pricing provided by the Seller into consideration, but theory11 reserves the right to control the exact price of Products offered for sale on The Wire. theory11 may from time to time choose to offer discounts, promotional events, or coupon codes to assist in promotion and sale of the Products on the Site and is free to do so in its discretion without liability to the Seller with respect to the reduced purchase price obtained due to any such offer or discount.
20) Sellers are responsible for paying all fees and taxes (including withholding tax), associated with the sale of Products on the Site wherever levied (including any goods and services or value added taxes, if applicable).
21) All references on the Site to "$" and "dollars" are to the lawful currency of the United States of America unless otherwise specified. All prices on the Site are to be expressed in US currency.
22) The Site is an online facility that allows you to sell, and buy, Products. Ownership of Products remains with the Seller. theory11 does not have any control over, and does not take any responsibility for, the quality, safety or legality of any Products downloaded by you from the Site. theory11 does not warrant that the Products or any content, code, data or materials downloaded from the Sites does not infringe the intellectual property rights of a third party. Each Seller is required to warrant that its Product does not infringe the intellectual property rights of any third party.
23) While Seller retains all ownership rights in Products, by submitting Products to theory11, Seller hereby grants theory11 a perpetual, worldwide, non-exclusive, royalty-free, sub- licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Products in connection with the Service and theory11's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. The above licenses granted by Seller in Products submitted to the The Wire terminate within a commercially reasonable time after removal or deletion of the Products from the Site. Seller understands and agrees, however, that theory11 may retain, but not display, distribute, or perform, server copies of the Products that have been removed or deleted.
24) If you buy a Product, you do so on the following terms:
1. you cannot cancel an order for a Product once the order has been submitted;
2. theory11 does not give any undertaking as to the continued availability of Products offered for sale on the Site;
3. once your order for a Product is accepted, and you pay the fee, you acquire a non- exclusive license to use the Product in accordance with the conditions of the license that you acquire; and
4. ownership of the Product remains with the Seller.
25) If you sell a Product, you warrant to theory11 and each Buyer that, as a Seller, in relation to each Product that you offer for sale on the Site:
1. you own the intellectual property rights in that Product;
2. that Product does not infringe the intellectual property rights of a third party;
3. the description for that Product is not false, inaccurate or misleading;
4. that Product is not fraudulent, stolen or an unlawful item;
5. that Product does not violate any applicable law, statute, ordinance or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, criminal law, antidiscrimination or trade practices or fair trading laws);
6. that Product is not defamatory, unlawfully threatening or unlawfully harassing;
7. that Product is not obscene and does not contain child pornography and does not constitute or contain material that is adult in nature or harmful to persons under the age of 18 years;
9. that Product does not contain viruses or other computer codes, files or programs designed to limit or destroy the functionality of other computer software or hardware;
10. that Product would not create liability for theory11 or cause theory11 to lose (in whole or in part) the services of its ISP or other suppliers; and
11. that Product would not cause theory11 to violate any applicable law, statute, ordinance or regulation by making it available on the Site.
26) As a Seller, you acknowledge and agree that any Product offered for sale by you on the Site must first be submitted to theory11 to enable theory11 to check the quality of the Product and the information provided with the Product and its general compliance with theory11's standards and its suitability for uploading on the theory11 Site. theory11 may refuse, in its sole discretion, to allow you to offer the Product for sale on the Site. theory11 is not required to give reasons for refusing to allow you to offer a Product for sale on the Site.
27) Any and all Product descriptions provided by Seller will be fair, clear, honest, and accurate. Any phrasing, words, or sentences that are deemed inaccurate or unclear at the discretion of theory11 staff may be removed or modified at will prior to publication or after publication. Any instances of deceit or misleading claims within the description are grounds for denial from publication on The Wire, temporary removal from The Wire (if already published), permanent removal from The Wire (if already published), or removal of Seller's account. theory11 has the right but not the obligation to modify the title or text description content provided by Seller for any reason or no reason, subject to the sole discretion of theory11 staff and crew based on our knowledge of the industry and best judgment. While theory11 may provide modifications as noted herein, theory11 is not to be considered the editor of any content associated with the Product provided by the Seller, and all issues associated with the Product and the content associated with the Product provided by the Seller shall remain the sole responsibility of the Seller.
28) To improve the marketplace experience, Products offered on The Wire may be rated or reviewed. All reviews and ratings must be honest and written in good faith with full disclosure of any "material connections" (including payments or free products) provided to the reviewer by the Seller and otherwise consistent with the Federal Trade Commission guidelines governing endorsements and testimonials. theory11 further prohibits the submission of false negative reviews as to any competing Products. theory11 reserves the right to remove any reviews without notice to the reviewer in theory11's sole discretion. To ensure consumers can trust that reviews provided for Products on The Wire are honest and written in good faith, theory11 requires that persons with an Artist Account utilize their full, real name and accurately identify themselves and their connection to the Product being reviewed in order to have any of their reviews or ratings of any Products published in The Wire. In addition, as a security precaution and added measure to confirm that the review or rating is written in good faith, and not falsified by the any person who may benefit from positive or negative reviews, theory11 actively logs the IP address of each review submission. Any impropriety pertaining to reviews and ratings is grounds for immediate suspension or permanent removal of the Artist Account. While theory11 in its discretion may take any and all steps deemed by theory11 to be appropriate to ensure that ratings and reviews are written in good faith, under no circumstances shall theory11 be responsible for the content of any ratings or reviews, whether negative or positive.
29) All Artists agree to engage in a professional, honest manner in promotion and publicity and management of his or her effects published on The Wire. By submitting content for publication on The Wire, the Artist agrees not to utilize any improper means to artificially increase or manipulate the statistics engine, popularity rankings, sales rankings, code, algorithms, or any other administrative aspect of The Wire as a means to artificially elevate their own ranking or popularity on The Wire. theory11 reserves the right to make all possible efforts to employ security mechanisms to prevent such practices, but under no circumstances shall theory11 be responsible for any popularity rankings, sales rankings, ratings or reviews, whether negative or positive.
30) As a Seller, you acknowledge and agree that if theory11 determines, in its absolute discretion, or is notified by a third party, that a Product that you offer for sale on the Site does not comply with any applicable laws and/or these Terms of Service, theory11 will disable your Account and withhold all amounts that you may have earned from the sale of the relevant Product until any dispute in relation to the Product has been resolved to the satisfaction of theory11.
31) As a Seller, you acknowledge and agree that theory11 may, at its sole discretion, elect at any time to remove your Products from the Site without notice to you. theory11 is not responsible for any loss that you may suffer as a result a Product being removed from any of the Site by theory11.
32) As a Buyer, you acknowledge and agree that despite theory11's reasonable precautions, Products may be listed at an incorrect price or with incorrect information due to a typographical error or similar oversight. In these circumstances, theory11 reserves the right to cancel or reverse a transaction, even after your order has been confirmed and a payment has been processed. If a transaction is cancelled, theory11 will immediately arrange for any payment to be refunded.
33) theory11 is not liable for any loss suffered by a Seller as a result of a Buyer making use of a Product contrary to the conditions on which the Product was sold to the Buyer.
34) As a Seller, you agree and acknowledge that theory11 may use your Product (or part of a Product) from time to time to promote the Site, including on a features page on the Site itself.
35) Prior to submitting any Product to theory11 for sale on the Site, all Sellers must complete and submit appropriate forms for tax purposes such as a completed W-9 from U.S. persons and an applicable form W-8 from foreign persons (generally a W-8BEN), as directed by theory11 in its sole discretion.
36) theory11 does not discriminate on the basis of race, religion, national origin, color, sex, age, veteran status, or disability. It is theory11's intention that all qualified submissions be given equal opportunity and that selection decisions are based on quality related factors. Nevertheless, theory11 reserves the right to approve or disapprove any Content for publication or Product for sale on the Site for any or no reason.
37) theory11 shall provide all customer support and technical support to customers who purchase Product on The Wire. No fees are deducted for customer support, bandwidth, payment processing, or any other deduction not contained with these Terms of Service.
38) theory11 has complete control over the handling of returns and requests for refunds on Product purchased on the Site when such refund is reasonably requested by the Buyer within thirty (30) days of purchase. In theory11's sole discretion, a refund may be granted to the customer when deemed necessary in the interest of maintaining a fair, positive environment with unrivaled customer service.
39) The Seller shall receive sixty (60) percent of net revenue derived from sale of Products, minus any bona fide returns. The remaining forty (40) percent of net revenue is retained by theory11 in consideration of the benefit provided by, and to cover theory11's costs and expenses in connection with running and providing customer support and related services for, The Wire. On or before the 11th day of each month, theory11 will post a PDF statement on the Seller's account page (Artist Dashboard) detailing sales made, if any, during the prior month and the amounts due to the Seller for any such sales made during the previous month.
The amounts due to the Seller, if equal to or more than fifty dollars ($50.00) will then be paid by theory11 by check postmarked on the 11th day of the month directed to the Seller at the address then associated with Seller's account. If the amounts due to Seller are less than fifty dollars ($50.00), said amount shall be held in Seller's account and carried over to the next month until such time as the amount reaches fifty dollars ($50.00). The amounts due Seller that are carried over in Seller's account are not deposits. theory11 will pay all amounts due Seller by check postmarked on the 11th day of the month following 30 (thirty) days of the closure of Seller's account directed to the Seller at the address last associated with Seller's account, provided no returns are pending or other Product disputes are pending. If returns or other Product disputes are pending, any amounts due Seller will be paid by theory11 by check postmarked on the 11th day of the month following 30 (thirty) days of the resolution, to be determined in theory11's discretion, of any pending returns and Product disputes, and will be directed to the Seller at the address last associated with Seller's account.
40) Nothing in these Terms constitutes a partnership between the parties or makes one party an agent of another party for any purpose. A party cannot in anyway or for any purpose bind another party contract in the name of another party.