WEBSITE TERMS OF USE AGREEMENT

 

Effective Date:  January 1, 2023

 

This Website Terms of Use Agreement (the “Agreement”) is between you (the “User”) and Wildfire Productions, Inc. (the “Company”). In consideration of the right to access and use the Company’s Website located at www.michaelmartinmurphey.com (the “Website”), User agrees to the terms and conditions of use set forth in this Agreement. User’s continued use of the Website indicates User’s willingness to be legally bound by the terms and conditions of this Agreement as set forth below.

 

1.         COVENANT TO READ AGREEMENT

User acknowledges that User has read the terms and conditions of use and accepts the terms thereof. USER AGREES TO READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR SUBSCRIBING TO THE WEBSITE. If User does not agree to these terms and conditions of use, User may not access or otherwise use the Website.

 

 

2.         COMPANY’S CONTROL OVER WEBSITE

A.        The Company has the right, but not the obligation, to monitor the use of the Website and its content and, except as otherwise provided in this Terms of Use Agreement or the Company’s Privacy Policy. User agrees that the Company may freely use and disclose any information and/or materials received from the User or collected through User’s use of the Website for any lawful reason or purpose. 

B.        The Company reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Website.

C.        The Company reserves the right at all times to disclose any information (including information about the Users) as necessary to satisfy any law, regulation or government request.

D.        The Company reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Terms of Use Agreement including the Website Privacy Policy or the Website Purchase and Refund Policy, in whole or in part, at any time. Notification of changes in the Agreement including the Website Privacy Policy or the Website Product Purchase and Refund Policy will be posted on the Website. Amendments to the Agreement including the Website Privacy Policy or the Website Product Purchase and Refund Policy will take effect immediately upon being posted to the Website, and User’s continued use of the Website constitutes User’s acceptance thereof.

E.         The Company may change, suspend or discontinue any aspect of the Website at any time, including, but not limited to, content, database, hours of availability, and equipment needed for access or use.

F.         The Company may also impose limits on certain features and services or restrict User’s access to parts or the entire Website without notice or liability.

 

3.         INTELLECTUAL PROPERTY RIGHTS

A.        The Website is protected by the intellectual property laws of the United States of America, including trademark and copyright laws and international conventions. The Website and its Contents are owned or licensed by Company. Any trademarks, logos, slogans, and/or other distinctive designs are protected by the state, national, and international laws of trademark, trade dress, and unfair competition. “Michael Martin Murphey,” “WestFest,” “American WestFest,” “Cowboy Christmas Ball,” “Cowboy Christmas,” “Cowboy Christmas Concert,” and “Michael Martin Murphey’s West Fest” are all federally registered trademarks that are owned solely and exclusively by Michael Martin Murphey, an individual. Company’s commercial use of such trademarks on this Website have been expressly authorized and licensed by Mr. Murphey. User represents and agrees not to make any commercial or infringing uses of such trademark without the prior written and express permission of Michael Martin Murphey. 

B.        All materials contained within the Website (the “Content”), including but not limited to all photography and video content, are protected by copyright, and are owned or controlled by Company or the party credited as the provider thereof.  User will abide by any and all intellectual property notices, including copyright notices, information, or restrictions contained in any Content on the Website. 

C.        User MAY NOT download and make copies of the Content and other downloadable items displayed on the Website for any use.  Copying or storing of any Content is expressly prohibited without the prior written consent of the Company or the copyright holder identified in the individual Content’s copyright notice.

 

4.         PRIVACY AND DISCLAIMERS

Use of the Website is subject to the terms of the Michael Martin Murphey Website Privacy Policy incorporated herein by reference.  By accessing and using the Website, User agrees to all Terms of Use, Privacy Policy and other notices or disclaimers published to the Website by Company. 

 

5.         USER’S COVENANTS

By accessing and using the Website, User represents warrants and covenants that:

A.        User is at least eighteen (18) years of age;

B.        User shall not upload post or transmit to or distribute or otherwise publish through the Website, including but not limited to, any materials which (i) restrict or inhibit any other user from using and enjoying the Website, (ii) are unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law, (iv) violate, plagiarize, or infringe the rights of third parties, including, but not strictly limited to, copyright, trademark, patent, rights of privacy or publicity or any other proprietary rights, (v) contain any viruses, Trojan horses, worms, time bombs, cancel bots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (vi) contain any information, software or other material of a commercial nature, (vii) Contain advertising of any kind, or (viii) constitute or contain false or misleading indications of origin or statements.

C.        User shall not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any business being conducted on the Website. User shall not take any action which imposes an unreasonable or disproportionately large load on the Website’s infrastructure (e.g., the sending of mass e-mail or junk mail, known as “Spamming”). 

D.        User shall not disclose to or share User’s Member or Account number or password with any third parties or use the password for any unauthorized purposes. =

E.         User shall not link to the Website in any manner that would bypass the Website’s home page. User shall not “frame” the Website or any portion thereof.

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6.         USER’S ACKNOWLEDGMENTS

A.        User acknowledges that the Company may use any communications made through the Website for any lawful purpose, subject to the Company’s Privacy Policy. User shall not be entitled to any payment or royalties from Company in the event that Company uses any such communications.

B.        User acknowledges that transmissions to and from this Website are not confidential and any of User’s communications may be read or intercepted by others.

C.        User acknowledges that any reliance upon any opinion, advice, statement, memorandum, information, or other material contained in the Website or any of its links shall be at User’s own risk.

D.        User is responsible for any and all fees, taxes, and expenses which may be incurred through the use of this Website or as the result of the purchase of products/services from within it.

 

 

7.         DISCLAIMERS

A.        The Website may contain links and pointers to other World Wide Web Internet sites, resources, and sponsors of the Website. Links to and from the Website to other third-party sites, maintained by third parties, do not constitute an endorsement by Company or any of its subsidiaries or affiliates of any third-party resources, or their contents.  Company has no control, input or influence over how any third-party website is operated.

B.        The Company does not represent or endorse the accuracy or reliability of any advice, opinion, or other information displayed or distributed through the Website.

C.        No third-party user content shall be permitted on the Website and the Company is not responsible nor liable for any user content.

D.        The Company disclaims any and all responsibility for content contained in any third-party materials provided through links on the Website.

E.         The Company shall not be liable for any problems caused by User supplying faulty information (such as the wrong email address or wrong delivery address) or due to User’s failure to make any particular specification with regard to a delivery address.

F.         No statements made in these terms or on this Web Site shall be deemed to affect the statutory rights of a consumer which cannot be restricted or excluded currently under the law.

G.        Every effort is made by the Company to ensure that the Website is correct.  In the event of any errors on the Website, the Company will endeavor to address and correct same as quickly as possible from the time of being made aware of the situation.

 

8.         PURCHASE OF PRODUCTS THROUGH THE WEBSITE

A.        How to Order Products and Services. Users (a.k.a. “Customers’) may purchase and order products on the Website by placing the desired product(s) in the virtual shopping cart and proceeding to checkout.  Prior to placing an order, the User should make sure that the email address that the User has provided is correct and in full working order. Once payment has been processed, the Website will also automatically generate an Order Confirmation page with the Order Number (if any). The Company will confirm acceptance of any order by email to the email address supplied by the User. The sending of this email, whether or not the same is received by the User, is confirmation of the details of the order and of the contract between the User and the Company for the purchase of the product or service. The Company recommends that the User print and save a copy of the Order Confirmation page for future reference. 

B.        Customer Service. Every effort is made by the Company to ensure that orders placed through the Website are handled correctly. In the case of errors, Company will endeavor to remedy, replace, or refund goods as quickly as possible from the time of being made aware of the situation. 

C.        Duty to Notify. It is the responsibility of the Customer to immediately notify the Company if there are any delivery problems or if the product the Customer orders and receives is not as described on the Website. Customers may send an email to offficialmichaelmartinmurphey@gmail.com.

D.        Limitation of Liability. The Customer’s sole remedy in any action at law against the Company related to the purchase and/or use of any goods or services offered through the Website, whether offered by the Company or a third party, is limited only to the recovery of the original purchase price.

E.         Shipment & Delivery of Ordered Goods.  The Company wants to deliver Customers’ purchased goods from the Website as soon as possible! 

 

All tangible products sold on the Website will be shipped to Customer’s shipping address within seven (7) business days. The Company will send the Customer an email confirming the shipment date and the tracking number for the applicable order within seven (7) business days of the tangible product’s shipment. All tangible products sold on the Website are shipped from the United States of America. Customer acknowledges and accepts that the delivery of any international orders, shipped outside the United States of America, may be further delayed, anywhere from six (6) weeks to four (4) months, by a foreign country’s boarder and customs department. 

F.         Return, Refund, and Exchange Policies.  

            i.          ALL REFUNDS AND EXCHANGES WILL BE ISSUED ON A CASE BY CASE BASIS.Refunds and exchanges are only available for tangible products that have been returned to the Company or services that have not been rendered by the Company. Customers have up to thirty (30) days after the purchase and delivery of the applicable product or service to request a refund or exchange from Company. Customers must return the purchased product to Company before a refund or exchange will be considered. Customers are responsible for all shipping and handing costs to return the product to Company.   

            ii.         Intangible products such as digital downloads may not be returned. Tangible products can be returned to the Company for a refund or exchange if the tangible product is damaged upon Customer’s receipt, or, in the case of a CD/DVD/Vinyl record purchase, such physical recordings does not function or play properly. However, no refunds or returns will be issued or accepted for personalized, autographed products, which are sold “as is.”

            iii.        Customers who desire to arrange for the return or exchange of a purchased tangible product must contact the Company at wfpromerch@gmail.com and identify the Customer’s name, what product or service that the Customer ordered, the date the product or service was ordered, the complaint or issue the Customer has with the product or service purchased, the Order Number (if any), and explain how the Customer would like the Company to resolve the issue.  The Company will respond to such inquiry within seven (7) business days. If the tangible product is eligible for a return, the Company will provide the Customer with detailed instructions on where to return the product. 

            iv.        Once a purchased product has been returned to the Company, the Company will determine if a refund or exchange will be issued. Any refund or exchange will occur within five (5) business days of Company’s receipt of the returned product. All refunds will be credited solely to the payment method used in the original transaction.  

 

9.         DISCLAIMER OF WARRANTY

THIS WEBSITE IS PROVIDED “AS IS.” USER UNDERSTANDS AND EXPRESSLY AGREES THAT THE USE OF THE WEBSITE AND ALL ITS CONTENTS IS AT USER’S SOLE RISK, THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IT MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE, REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE OR THAT THE WEBSITE WILL MEET USER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. COMPANY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL, TORTIOUS OR INFRINGING CONDUCT OF ANY USER. IF THE USER IS DISSATISFIED WITH THE WEBSITE OR WITH ANY OF COMPANY’S TERMS OF USE, THE USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE. USER FOREVER WAIVES ALL RIGHT TO CLAIMS OF DAMAGE OF ANY AND ALL KINDS BASED ON ANY CAUSAL FACTOR RESULTING IN ANY POSSIBLE HARM, NO MATTER HOW HEINOUS OR EXTENSIVE, WHETHER PHYSICAL OR EMOTIONAL, FORESEEABLE OR UNFORSEEABLE, WHETHER PERSONAL OR COMMERICAL IN NATURE.

 

THE WEBSITE CONTAINS LINKS AND POINTERS TO OTHER WORLD WIDE WEB INTERNET SITES, RESOURCES AND SPONSORS OF THE WEB SITE. LINKS TO AND FROM THE WEBSITE TO OTHER THIRD-PARTY SITES, MAINTAINED BY THIRD PARTIES, DO NOT CONSTITUTE AN ENDORSEMENT BY COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES OF ANY THIRD-PARTY RESOURCES, OR THEIR CONTENTS.

 

 

10.       INDEMNIFICATION

To the extent permitted by applicable law, User agrees to indemnify and hold harmless, and upon Company’s request, defend, Company, its directors, officers, employees, independent contractors and agents (each a “Company Indemnified Party”) from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorney’s fees and court costs (collectively, “Losses”), incurred by a Company Indemnified Party and arising from or related to any of the following: (i) the User’s breach of any certification, covenant, obligation, representation or warranty in this Agreement; (ii) any claims that the User has violated or infringed any third party intellectual property or proprietary rights including but not limited to any metadata, related trademarks and logos, or images and other materials that the User provided to the Company under this Agreement; or (iii) the User’s use of the Company’s Website or services.

 

 

11.       DISPUTE RESOLUTION AND CHOICE OF LAW

This Agreement shall be governed by the procedural and substantive laws of the United States and the State of Texas, notwithstanding any otherwise applicable choice or conflict of law provisions to the contrary. In the event that the parties cannot negotiate a resolution of any dispute, then the parties agree to submit their dispute to mediation, and then to arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of any mediation or arbitration shall be Dallas, Texas. The prevailing party in any arbitration shall be entitled to reasonable attorney’s fees and expenses.       

 

12.       EQUITABLE RELIEF

Notwithstanding the foregoing, User acknowledges that the performance of its obligations hereunder and the rights and licenses assigned to Company hereunder may be of a unique, unusual, extraordinary and intellectual character which could give them a special value, the loss of which may not be reasonably or adequately compensated in damages in an action at law, that a breach by User of this Agreement may cause Company great and irreparable injury and damage and, therefore, while expressly reserving all of Company’s rights and remedies hereunder, Company will be entitled to seek injunctive relief to prevent such injury or damage.

 

13.       UNENFORCABILITY OF PROVISIONS

If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.

 

14.       CONTACTING COMPANY.  

A User may contact the Company for any questions or concerns by sending an email to officialmichaelmartinmurphey@gmail.com

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15.       DOCUMENTS COMPRISING THE AGREEMENT

By using the Website, User consents, as if the User had entered into and signed a contract with the Company, to this and any amended version of this Agreement (i.e. Michael Martin Murphey Website Terms of Use Agreement) which includes the external Privacy Policy and the Product Purchase and Refund Policy as amended and published on the Website. This Agreement comprises the entire agreement between Company and User. This Agreement which includes the Company’s Terms of Use, Privacy Policy, and the Product Purchase and Refund Policy shall be deemed to be valid and enforceable under the Uniform Electronic Transactions Act as well as United States Electronic Signatures in Global and National Commerce (E-Sign) Act of 2000 as the original signature. The Company may update, amend, or modify the Agreement (in whole or in part) at any time, without notice to the User. For and in consideration of the User’s ability to use and access the Website, User agrees that he or she will acknowledge and accept any amendments or modifications of this Agreement as posted to the Website. User agrees to actively check the Website for any changes to this Agreement. 

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16.       NOTICE OF COPYRIGHT INFRINGEMENT UNDER THE “DIGITAL MILLENNIUM COPYRIGHT ACT” (DMCA)

The Company does not permit Users to upload photographs, video or other content to the Website and the Company does not tolerate copyright infringing activities on the Website. However, if a person or entity is a copyright owner or an agent for such owner and believe that any Content on the Website infringes upon such person or entity’s copyright, such person or entity may notify the Company by providing the following information in writing (sent to the address set forth below): 

a.         A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed;

b.         Identification of the location where the original or an authorized copy of the copyrighted work exists;

c.         Identification of the material that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit the Company to locate the same;

d.         Information reasonably sufficient to permit the Company to contact the person or entity reporting the claim, including an address, telephone number, and an email address;

e.         A statement that the person or entity reporting the claim has 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

f.          A statement that the information in the notification is accurate, and, under penalty of perjury, that the person or entity reporting the claim is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.

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The Company’s agent for notice of claims of copyright infringement can be reached as follows:

 

Wildfire Productions, Inc. 

General Counsel's Office

c/o LanCarte Law, PLLC

2817 West End Ave., Suite 126-276

Nashville, TN 37203

 

By Email: chase@lancartelaw.com 

 

If the person or entity reporting the claim fails to comply with all of the requirements above, such notice may not be valid.