Section 1 - General
1.2 Amendments. We reserve the right, exercisable in our sole discretion at any time, to change, modify, add to, subtract from, or otherwise amend the terms and conditions of this Agreement. Such changes, modifications, or other amendments shall be effective immediately as of the day they are posted on the Site. Continued use of the Services by you constitutes your binding acceptance of this Agreement, including any changes, modifications, or amendments made by us as permitted above. You agree to review the terms and conditions of this Agreement periodically to become aware of such changes, modifications, or amendments and to review your compliance with them. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must immediately cease all use of the Services. The right to access and use the Services is personal to you and is not transferable to any other person or entity.
1.3 Additional Agreements. The Services include, among other things, such services as: uploading or downloading materials provided by us, other data providers, and other users. Additional terms and conditions of use applicable to your use of any other services available at the Site from time to time are or may be posted in relevant areas within the Site or may be agreed upon by you and us in a separate written agreement (all such additional terms and conditions, "Additional Agreements"). Such Additional Agreements are incorporated by reference herein and form part of this Agreement and will govern your use of all services made available by us to you. We reserve the right, exercisable at our discretion, to change or discontinue without prior notice some or all of the Services we provide from time to time at the Site, or change the applicable terms and conditions for your use of such Services as set forth in this Agreement or the Additional Agreements incorporated herein.
1.4 Your Account. Your Account is identified by your chosen user name (your "User Name") and user password ("User Password"). You are the only party authorized to use your Account. You are responsible for maintaining the confidentiality of your User Name and User Password. No more than one person at any one time may access the Site or use the Services under a single Account; multiple concurrent users with the same Account are not permitted. You are responsible for all uses of your Account, whether or not actually or expressly authorized by you. If you believe that your User Name and User Password have been misused or compromised in any manner, please contact us immediately at
1.5 Fees. Registered users are charged a monthly fee that is posted on our website. We use PayPal for all billing. PayPal may ask for additional information to set up a PayPal account if you do not already have a PayPal account. The monthly fee will be automatically charged through PayPal each month until such time as you cancel your account. No refunds will be provided on the unused monthly portion of a canceled account.
1.6 Equipment. You shall be solely responsible for obtaining and maintaining all internet access, communications, computer software and software updates, computer hardware and other equipment needed for access to and use of the Services and all charges of any description arising from or relating thereto.
1.7 Probirt Data Release. We are not involved in actual transactions between users of the Site. We have no control over the quality of the data provided by third parties or other users of the site and displayed on our Site, or the truth and accuracy of such data displayed on our Site. In the event that you have a dispute with one or more users or third party data providers of the Site you hereby release Probirt from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Section 2 - Information You Provide to Us
2.1 Your Information. The term "Your Information" means collectively the following: (i) any information or materials you provide to us in connection with our registration process, your use of any Services, or in correspondence with us, (ii) any information or materials you provide to other users of the Site in connection with your use of any Services, (iii) any information or materials you provide to third parties affiliated with Probirt in connection with your use of any Services, and (iv) any search terms or other instructions that you transmit to our servers through a web browser. Except as may be otherwise expressly provided to the contrary in this Agreement, you are solely responsible for Your Information, and we act at all times as a passive conduit for your online distribution, communication, and/or publication of Your Information.
2.2 Covenant Regarding Your Information. You agree that Your Information: (i) will not be false, inaccurate, frivolous, or misleading, (ii) will not infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy, (iii) shall not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising), (iv) will not be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, or obscene, (v) will not contain any computer viruses, worms, Trojan horses, time bombs, or other computer programs, scripts, or instructions that are intended to damage or detrimentally interfere with the operation or use of the Services, or to intercept or expropriate any proprietary computer system information or other confidential data or personal information relating to or arising out of the access or use of the Services, (vi) will not create any liability for Probirt or cause Probirt to lose (in whole or in part) the services of its internet service providers or other suppliers and business affiliates, (vii) will not contain any links to or from other information or websites for which you do not have the right to make or reproduce such links, and (vii) will not solicit or involve the display or description of counterfeit, stolen or illegal items, or solicit or commit any fraudulent transaction or other form of criminal activity.
2.3 Updated Information. If you are a registered user of the Site, you agree to promptly update your account registration information in order to keep it current, complete, and accurate.
2.5 User-supplied Content. You may voluntarily upload to the Site or otherwise transmit for storage on the Site your own copyrighted works, including photographs, documents, forum messages, sound recordings and the like ("Your Content"). By voluntarily storing Your Content on the site, you grant Probirt a worldwide, non-exclusive, fully-paid up, irrevocable, and transferable license to reproduce, copy, distribute, prepare derivative works from, and, in the case of sound recordings or audiovisual works, to publicly perform or publicly display, Your Content. This license survives termination of this Agreement and survives termination of your user account.
By voluntarily storing Your Content on the site you also grant PROBIRT the irrevocable right to use your likeness or picture included in Your Content and the likeness or picture of any other identifiable individual in Your Content in all forms and media and in all manners, including composite or distorted representations, for advertising, trade, or other lawful purposes, and you waive any right to inspect or approve any such use of your likeness or picture and you waive on behalf of any other identifiable individual such individual's right to inspect or approve any such use of such individual's likeness or picture. This irrevocable right survives termination of this Agreement and survives termination of your user account.
Section 3 - Use of Content
3.1 Copyright. You acknowledge that the Services may contain information, text, software, photographs, graphics, links and other material (collectively, the "Content") that are protected by copyright, trademark or other proprietary rights of Probirt or third parties. All Content used or made available through the Services is copyrighted as a collective work and/or compilation of Probirt pursuant to applicable copyright law. Probirt owns a copyright in the selection, coordination, arrangement and enhancement of such Content, as well as in the content original to Probirt. You agree to comply with any additional copyright notices, information, or restrictions contained in any Content available on or accessed through the Services.
3.2 Limited License. Subject to your compliance with the terms and conditions of this Agreement (including without limitation the restrictive terms and conditions set forth in this Section 3), you are granted a limited non-exclusive, non-transferable, non-sub-licensable, and revocable license to access the Services and/or Content only for your own personal or business use but not for re-distribution or publication in any form.
You acknowledge that all text, and software code included with this Site are provided for your personal use. In no case shall you re-publish the listings in any form (including by display on another Web site) without express written permission of Probirt. You acknowledge that we may limit the amount of data returned for any search, regardless of the number of matching results contained within the Content. Your right to use this product is limited to a single user unless an additional agreement for multiple users has been signed by you and us. You acknowledge that you are not permitted to sell or otherwise dispose the software and that no rights granted hereunder may be assigned or sublicensed by you, any assignment or sublicense being void.
You may not modify, publish, transmit, transfer or sell, resell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit or commercially use any of the Services and/or Content, in whole or in part, except as expressly permitted in this Agreement. You acknowledge that you do not acquire any ownership rights by accessing or downloading copyrighted materials. You shall not store electronically any portion of any Services and/or Content except for your own personal use. You may not collect and use e-mail addresses of other users of the Site or other user account information, listings, or perform any form of data extraction or data-mining whatsoever. Except as expressly permitted by the copyright laws, no copying, storage, redistribution or publication of any of the Services and/or Content is permitted without the express permission of Probirt or the owners of such Services and/or Content or their authorized persons, if other than Probirt. You are responsible for complying with all applicable laws, rules, and regulations regarding your use of any such downloaded Content. Probirt reserves all rights in the Content and Services not expressly granted hereunder.
3.3 Trademarks. Probirt, Probirt.com, and the Probirt logo are trademarks of Probirt. ALL RIGHTS RESERVED. All other trademarks, service marks, product names and company names or logos appearing on the Site are the property of their respective owners. Any use of such trademarks, service marks, product names and company names or logos, including the reproduction, modification, distribution or republication without the prior written permission of the owner of same, is strictly prohibited.
3.4 Beneficiaries. The foregoing provisions of this Section 3 are for the benefit of Probirt, Probirt's heirs and assigns, and Probirt's third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
Section 4 - Site Access; Interference with Services; Monitoring; Compliance with Laws
4.1 Site Access. We do not guarantee continuous, uninterrupted, or secure access to the Services, and operation of the Site may be interfered with by numerous factors outside of our control.
4.2 No Interference. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or the Services, or any transaction being conducted on or through the Site or Services. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the server infrastructure of the Site.
4.3 Fraudulent Activity. You may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with payment of fees related to this Site or its Services. You may not impersonate any other user of the Services, or make use of another user's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported by us to law enforcement authorities, and we will cooperate with such authorities to ensure that violators are prosecuted to the fullest extent of the law.
4.4 Monitoring. You agree that Probirt has the right, but not the obligation, to monitor any form of user activity and/or Your Content and/or Content linked to or from or otherwise associated with the Services. We may investigate any reported violation of our Agreement, Additional Agreements or Site policies, and any user or other third party complaints relating thereto. We may take any action that we deem appropriate in connection with any such investigation without notice (including without limitation issuing warnings, suspending or terminating Services and/or denying Site access). We may also investigate, in our sole discretion, the use of any credit card by a user in connection with the Services, and take such action as we deem necessary or appropriate, including without limitation contacting the owner or user of such card or canceling purchase orders placed by such owner or user.
4.5 Compliance with Laws. The Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Services and any transactions that may be conducted by means of the Services.
Section 5 - Breach
5.1 Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registered user account and/or refuse to provide the Services to you: (i) if you breach this Agreement; (ii) if we are unable to verify or authenticate any information you provide to us; or (iii) if we believe that your actions may cause legal liability for you, us, or our other users, or other third party business affiliates.
Section 6 - Indemnity
6.1 You agree to indemnify, defend, and hold Probirt and Probirt's agents, information providers, and licensors (collectively, the "Probirt Parties") harmless from and against any and all claims, liability, losses, costs, and expenses (including attorneys' fees) incurred by any Probirt Party in connection with any use or alleged use of the Service under your password by any person, whether or not authorized by you. Probirt reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Probirt's defense of such claim.
Section 7 - Termination of or Change in the Services
7.1 Probirt shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Services. Probirt reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Services at any time for any reason without prior notice or liability. Probirt may change, suspend or discontinue all or any aspect of the Services at any time, including the availability of any feature, database, Your Content, or Content without prior notice or liability.
SECTION 8 - DISCLAIMER OF WARRANTIES
8.1 NEITHER PROBIRT NOR ANY PROVIDER OF THIRD PARTY CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES PROBIRT, ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE, SERVICES OR THE CONTENT. THE SERVICES AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF PROBIRT, THIRD-PARTY CONTENT PROVIDERS, AND THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH RESPECT TO THE SITE, SERVICES, OR ANY CONTENT. NEITHER PROBIRT NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE OR SERVICES WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. WITHOUT LIMITING ANY PROVISION HEREIN. PROBIRT MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER SYSTEM CONFIGURATION WILL BE COMPATIBLE WITH THE SITE. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEM HAS THE APPROPRIATE HARDWARE, OPERATING SOFTWARE, AUXILIARY SOFTWARE, AND INTERNET BROWSER SOFTWARE VERSIONS TO ACHIEVE THE SITE’S FULL FUNCTIONALITY AND CAPABILITIES. Some states do not allow the disclaimer of implied warranties or limitation on how long an implied warranty lasts, so the above disclaimer or limitation may not apply to you. You may have other rights, which vary from state to state.
SECTION 9 - LIMITATION OF LIABILITY
9.1 THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 9 APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, BREACH OF PRIVACY, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT PROBIRT IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
9.2 UNDER NO CIRCUMSTANCES WILL PROBIRT OR PROBIRT'S HEIRS or ASSIGNS, OR ANY OF ITS EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH EITHER THE CONTENT OR THE SERVICES, OR ANY LOSS OR DAMAGE CAUSED BY YOU BEING EXPOSED TO INFORMATION CONTAINED ON THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING OPINIONS OR ADVICE REGARDING THE IDENTIFICATION, VALUATION OR REPAIR OF BAND OR MUSICAL INSTRUMENTS.
9.3 NEITHER PROBIRT, ANY THIRD-PARTY CONTENT PROVIDER NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, the liability of Probirt, third party content providers and their respective agents shall be limited to the greatest extent permitted by law.
Section 10 - Miscellaneous
10.1 Governing Law. All disputes, claims or controversies arising out of this agreement, or the negotiation, validity or performance of this agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the state of Pennsylvania without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania and of the United States of America located in Lebanon County, Pennsylvania (the "Pennsylvania Courts") for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Pennsylvania Courts and agrees not to plead or claim in any Pennsylvania Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Pennsylvania Courts.
10.2 Headings. Section headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
10.3 Severability; Construction. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
10.4 Waiver. Probirt's failure to exercise or forbearance from exercising any rights or remedies, or failure to enforce or forbearance from enforcing, the strict performance of any provision of this Agreement, will not constitute a waiver of Probirt's right to exercise such rights or remedies or enforce such provision or any other provisions of this Agreement in that or any other instance. Any waiver of any provision of this Agreement by Probirt must be made in writing and signed by an authorized representative of Probirt specifically referencing this Agreement and the provision to be waived.
10.5 Assignment; Third-Party Beneficiaries. This Agreement will inure to the benefit of Probirt's heirs, successors and assigns. Except as set forth in this Agreement, this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.
10.6 Notices. Except as otherwise provided herein, any notices to be given pursuant to this Agreement may be given by postal mail to Probirt.com, P.O. Box 28, Annville, PA 17003 (in the case of us) or to the email address you provide to us during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us during the registration process in the event that an address was supplied. In such case, notice shall be deemed given 3 days after the date of mailing.
10.7 Survival. Subsections 3.1, 3.3, 3.4, 4.3, 4.4 and Sections 6 ,7, 8 and 9 shall survive any termination of this Agreement as well as any other provisions which by their terms or sense are intended to survive.
10.8 Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and except for any Additional Agreements that you may have entered into with Probirt, supersedes all previous written or oral agreements between the parties with respect to such subject matter hereof.