The Service And The Purpose Of These Terms
This agreement pertains to your access to uPlaya.com; the uPlaya™ applications on Facebook®, Bebo, hi5, Myspace, Orkut, Slide, and other social platforms; uPlaya™ widgets designed for embedding on any website; the uPlaya™ iTunes Plugin desktop plugin for iTunes, Windows Media Player, and other media players; uPlaya™ RSS feeds, APIs, and other services (Websites and services are collectively the “Service”). These Terms include the policy for acceptable use of the Service and content posted on the Service and set forth your rights, obligations and restrictions regarding use of the Service. You may receive a copy of this Agreement by emailing us at: info@uplaya.com, Subject: Terms of Use Agreement.
We have attempted to lay out in this document all terms and conditions for the safe and fruitful interaction of the members of our varied community. If a matter or dispute arises that is not covered by these Terms, it will be resolved at Company’s sole discretion, but in conversation with the affected parties and within the governing law. If a member disagrees with the resolution, their recourse will be to delete their account.
Your Agreement
A. The Service is provided by Music Intelligence Solutions™, Inc. doing business as uPlaya™ (“Company”). You may use the Service as a “Visitor” (meaning that you browse a web page with the Service) or a “Member” (meaning you register for the Service, including clicking on the “I Accept” button or checking the “I Accept” box). The word “User” in these Terms refers to both Visitors and Members. These Terms and Conditions (“Terms” or “Agreement”) are a legal agreement between you and Music Intelligence Solutions™, Inc.
B. By using the Service as a Visitor or Member, you: (a.) agree to be bound by the Terms, (b.) represent and warrant that you are authorized to bind yourself or any entity (your band or broadcast and your employer or company) on whose behalf you enter into the Terms and (c.) represent and warrant that any such entity agrees to be bound by these Terms. Please read these Terms carefully and save them. If you do not agree with them, you should leave the uPlaya.com website and associated applications and should not register for the Service.
1. General
1.1. In consideration for your use of the Service, you represent and warrant:
1.2. Authority To Enter This Agreement. You have all necessary right, power and authority to enter into and perform as required under this Agreement. You are not barred from receiving the Service under the laws of the United States or other applicable jurisdiction.
1.3. Age. You are 13 years old or older. Under United States law, you must be at least 13 years of age to use this Service. (Children’s Online Privacy Protection Act of 1998 at http://www.ftc.gov/ogc/coppa1.htm).
1.4. Accuracy. All information provided by you to Company is true, accurate, valid, current and complete. Your e-mail address is regularly checked. If you do not provide such information, or Company reasonably suspects that you have not, Company has the right to suspend or terminate your account and refuse any and all use or access to the Service, including forfeiture of any prizes or awards won in any Contest.
2. Additional Terms And Modification Of Terms
2.1. Additional Terms. To use the Service, you may be required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions, they are hereby incorporated into these Terms.
2.2. Third Party Terms. The Service may integrate with other services provided by third parties. If you access or use the Service through a third party website or other interface, or use a software or other product in connection with the Service, you may be subject to additional terms and conditions.
2.3. Modification of Terms. Company may modify these Terms from time to time. You agree that such modification shall be effective upon posting on the Websites and you will be bound to any changes when you use the Service after such modification is posted. It is therefore important that you review these Terms on the Websites regularly to ensure you are updated regarding any changes. If the modification constitutes a material change, we may notify you via email to the address provided in your Account Profile. What constitutes a “material change” will be determined at our sole discretion, in good faith and using common sense and reasonable judgment. Notice will be considered to have been delivered once sent or posted. Any use of the Service after alteration of the Terms will constitute acceptance by you of such changes. Your sole remedy should you not agree with the altered Terms shall be close your account and to cease use of the Service.
3. Your Conduct And Activities During Use Of The Service
3.1. Personal Non-Commercial Use. You agree that: (a.) your account is for your sole, personal use (or the entity on whose behalf you are entering into this Agreement); (b.) you will not authorize others to make any use of any kind of your account or profile; (c.) you will not make any use (of any kind) of the Service, this site, or its contents for any commercial purposes, nor will you authorize others to do so; (d.) you will not utilize the free song upload offer more than one time, as it is a marketing promotion that is only available for first-time users of this service, and it is a violation of the terms and conditions to set up multiple free-use and/or standard accounts.
3.2. Password, Account And Security. You agree to keep your password secure and confidential and not to disclose it to anyone and will not permit any third party to access your account. You agree to notify Company immediately of any actual or suspected unauthorized use of your password or account or other breach of security.
3.3. Unauthorized Conduct. You agree that you will not engage in any illegal or prohibited conduct, on or through the Service or its Websites, including but not limited to the following:
3.3.1. Illegal Activity. You agree not to: (i.) engage in any criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, theft of trade secrets, violation of export control laws or any other use of the Service in a manner inconsistent with any and all applicable local, state, national and international laws and regulations or (ii.) use the Service for any illegal or unauthorized purpose. International Users must comply with all local laws regarding online conduct and acceptable content.
3.3.2. Advertising Or Solicitation. You agree not to: (i.) create, upload, post, e-mail, transmit, submit or otherwise make available unsolicited commercial messages to any Users except in areas designated for such purpose; (ii.) engage in advertising to, or solicitation of, any User to buy or sell any products or services; (iii.) collect usernames and/or email addresses for the purpose of sending unsolicited email; (iv.) use any information obtained from the Service or its Websites in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Users from such advertising or solicitation, Company reserves the right to restrict the number of messages which a User may send to other Users in any 24-hour period to a number which Company deems appropriate in its sole discretion. You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed by Company without notice and may result in termination of your account;
3.3.3. Obscuring Advertisements. You agree not to cover or obscure the banner advertisements on your personal profile page, or any of the Services web pages via HTML/CSS or any other means;
3.3.4. Scripting, Hacking Or Interfering. You agree not to: (i.) make any automated use of the system, (such as through scripts, data mining, robots, screen-scraping, or similar data gathering and extraction tools); (ii.) make available any material that contains software viruses, worms, any other code, files or programs of a destructive nature (or designed to interrupt, destroy or limit the functionality of the Service or user software or hardware); (iii.) interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service; or (iv.) act in a manner that negatively affects the ability of other Users to use the Service or engage in real-time dialogue via the Service’s messaging services;
3.3.5. Impersonation And Use Of Another’s Account. You agree not to (i.) attempt to or actually impersonate another User or person; (ii.) use any information obtained from the Service in order to impersonate another User or person or (iii.) use the account, username, or password of another User at any time;
3.3.6. Harassment. You agree not to abuse, harass, threaten, intimidate or harm Users or another persons or use any information obtained from the Service in order to do so;
3.3.7. False Association And Attribution. You agree not to (i.) engage in any conduct or statement which states or implies any false association between Company or its Service and yourself or another entity, (ii.) forge or manipulate headers or identifiers in order to disguise the origin of any content transmitted through the Service; or (iii.) mis-attribute or otherwise claim as your own the copyrighted works of another party.
3.4 Unauthorized Content. The following prohibitions are applicable to all information that you upload to or through the Service (including, but not limited to, any songs, band information, audio, sounds, video, data, images, graphics, photos, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS, HTML and links) (“Content”). You agree that you will not post or transmit any prohibited Content, including but not limited to the following:
3.4.1. Inappropriate Material. You agree not post on the Service, or transmit to other Users any Content or material which: (i.) is illegal, inaccurate, false, misleading, defamatory, abusive, obscene, profane, vulgar, tortious, libelous, patently offensive; (ii.) promotes illegal activities or furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (iii.) is sexually oriented or sexually explicit, or which contains nudity or obscene or lewd subject matter, exploits people in a sexual manner, contains a link to an adult website, or uses sexually suggestive imagery; (iv.) solicits personal information from anyone under 18; (v.) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; (vi.) provides any telephone numbers, street addresses, last names, URLs or email addresses of any other person; (vii.) includes a photograph of another person that you have posted without that person’s consent; (viii.) is excessively violent or exploits people in a violent manner; (ix.) is threatening, harassing or abusive, or which advocates threats against, harassment of or abuse of another person; (x.) is hateful, harmful or racially offensive, or which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (xi.) infringes or violates another party’s rights (including, but not limited to, copyrights, licenses, other intellectual property rights, contractual or fiduciary rights and obligations, and rights of privacy and publicity); (xii.) promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files; (xiii.) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; (xiv.) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xv.) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); (xvi.) contains unfair, misleading or deceptive Content intended to draw traffic to the profile or other page; or (xvii.) otherwise offensive or objectionable.
3.4.2. Personal Information. Publicly available profiles posted by a User or other publicly accessible information made available by the User may not include their telephone number, street address or last name;
3.4.3. Content Of Other Users. The Service contains Content of Users and other licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Service or its Websites.
3.5. Linking. When you post or link an outside website to Content hosted on Company’s servers, you must provide a link back to the corresponding display page on the Service’s website for each item of Content. However, you must not embed mp3 Content hosted on the Service’s Websites on outside websites that cause such Content to “autoplay” unless using features and services provided by the company created expressly for this purpose.
3.6. Maintenance. You agree to (a.) maintain and promptly update your account information to keep it true, accurate, current and complete; (b.) maintain an accurate, up to date, valid, and regularly checked email address for the purposes of receiving notification of changes to these Terms, and (c.) ensure that messages from Company are not being filtered, altered, or blocked by your email software or service.
3.7. You Are Responsible For Your Conduct And Your Content. With respect to the Service, you are fully and solely responsible for (a.) any activity that occurs under your screen name, password or account, including any violation of this Agreement, (b.) your own conduct and your interactions with other Users, and (c.) any Content, material or information that you upload, create, post, display, publish, e-mail, communicate, transmit or otherwise make available, or which you transmit to other Users.
3.8. Company’s Rights Regarding Conduct And Content. Company reserves the right to investigate and take appropriate action against anyone who, in Company’s sole discretion, (a.) violates the foregoing provisions regarding prohibited conduct and Content, (b.) violates or is alleged to violate any applicable law or the letter or spirit of this Agreement, (c.) engages in conduct which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. Company’s action may include, without limitation, reporting you to law enforcement authorities, terminating your account, removing, refusing or moving offending Content from the Service or Websites. If a dispute or claim arises from Content, Company reserves the right to remove the Content until a bona fide resolution has been reached. Company is in no position to resolve such claims or disputes, and we will not referee your disputes. There are no assurances whatsoever that any Content you submit shall actually be utilized on the Company site or, if so utilized, continue to be available for any particular time.
3.9. Disclaimer Regarding Conduct And Content. Despite the above-stated prohibitions on inappropriate conduct and Content, information provided by Users and conduct of Users may violate some or all of the foregoing prohibitions. Company does not endorse and has no control over the conduct or Content of its Users. User conduct and Content is not necessarily reviewed by Company and does not necessarily reflect the opinions or policies of Company. Company assumes no responsibility or liability for this conduct or Content and makes no warranties, express or implied, as to User conduct or Content, including its accuracy or reliability, or of any material or information that you or other Users transmit by or through the Service. Company assumes no responsibility for monitoring the Service or Websites for inappropriate conduct or Content. If at any time Company chooses, in its sole discretion, to monitor the Service or Websites, Company nonetheless assumes no responsibility to modify or remove any inappropriate Content, and no responsibility for the conduct any User.
3.10. Reporting. If you become aware of misuse of the Service or its Websites by any person, including any inappropriate conduct, Content, or DMCA-related copyright infringements, please use the Report Abuse form on uplaya.com.
4. Proprietary Rights In Content That You Provide To The Service
4.1. You Have All Necessary Rights. For all Content that you upload to the Service, you represent and warrant that (a.) you own or otherwise have all rights, approvals, licenses and/or consents necessary to submit the Content and (b.) that use of the Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademarks, contract rights or any other rights of any person. You agree to pay all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Service. You further guarantee that the compositions, recordings, lyrics, text and other materials contained in the Content are original, created only by you or the entity on whose behalf you are entering into this Agreement and do not contain any “samples” or excerpts that would infringe on the copyrights of others and do not otherwise infringe on the rights of any other individuals or companies.
4.2. Your Ownership Of Proprietary Rights In Uploaded Content. Company does not claim ownership of any intellectual property rights over the Content (including text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials) that you upload to the Service. Any intellectual property rights, including the copyright, in uploaded Content belongs solely to you, subject to the non-exclusive license granted herein. After uploading your Content to the Service, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose.
4.3. License Of Uploaded Content To Company. By displaying or publishing (“uploading”) any Content on or through the Service or its Websites, you hereby grant to Company a limited license to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display, reproduce, and distribute such Content (in whole or in part) or prepare derivative works, in any format or medium now known or later developed, and synchronize such Content with photo slideshows or video solely on and through the Service, its Websites or its affiliates. The license is non-exclusive (meaning you are free to license your Content to anyone else in addition to Company), fully-paid and royalty-free (meaning that Company is not required to pay you for the use on the Service or its Websites of the Content that you upload), sub-licensable (so that Company is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Service and Websites and to permit Users to view, hear, read, stream, download and link to your Content), and worldwide (because the Internet, the Service and the Websites are global in reach). You represent and warrant that you have sufficient ownership rights to grant this license.
4.4. License For Syndication. You also grant Company the right to use and sublicense the Content, such as songs, images and photos, and Band Information (including, but not limited to, names, likenesses biographical material, logos, marks or trade names of you or any individuals performing or otherwise represented in the Content or the artist or band included or referred to in the Content) for the purposes of syndication of Company’s products and services, including, without limitation, by syndicating and embedding widgets and band pages on third party websites, at Company’s discretion, without any payment to you or any other persons or companies. Company may sublicense its right to display your Band Information, photos, and images to anyone.
4.4.1. License For Promotional Purposes. If you register your band via the uPlaya.com interface, you grant Company the right to use the Content, such as songs, photos, images, and Band Information for the purpose of promotion of Company’s products and services without any payment to you or any other persons or companies. You represent and warrant you have the right to grant this license.
4.5. Waiver of Performance Royalties. You grant Company a waiver of any performance royalties on the Content when performed by Company in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the Content to grant Company such waiver.
4.5.1. Sub-waiver of Performance Royalties. If you register your band via the uPlaya.com interface, you grant Company the right to waive, on your behalf, any performance royalties on the Content when performed by a third party in a broadcast format such as internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the Content to grant Company such waiver.
5. Music Synchronization to Third Parties
5.1. Grant of Rights. You authorize Music Intelligence Solutions, Inc. to permit third parties including but not limited to advertisers, television, cable and radio producers and programmers, Web site designers and other creative types in the various media (“Sync Users”) to use your musical tracks, on a non-exclusive basis unless otherwise agreed, in synchronization with radio, cable, television, motion pictures, websites, Internet or other visual or audio alone program, promotion, information, entertainment, or advertising material or service, or program material, or as so-called “ring tones,” “master tones,” “ringback tones,” or similar audio segments in connection with wireless devices. The License Agreement does not grant to anyone the right to make or sell physical recordings of your music.
5.2. Music Intelligence Solutions’ Right to Administer. Effective upon execution hereof, Music Intelligence Solutions shall have the non-exclusive right to administer and permit the exploitation of Content throughout the world, to publish, use and license the Content, including public performance, synchronization and duplication uses, to execute in User’s name or stead any license and global international agreements affecting the Content, during the Term, as defined below, and to collect, subject to any interests of third parties, all gross receipts payable to Music Intelligence Solutions earned by and derived from the Content (excluding the so-called “writer’s share” of publishing monies from public performance fees), in perpetuity. Music Intelligence Solutions shall have the right to grant one (1) or more Licensed Uses with respect to each Content during the Term. Upon termination or expiration of this Agreement, Music Intelligence Solutions shall no longer have the right to grant to any third party permission for a new Licensed Use with respect to any Composition. Nothing contained herein shall grant to Music Intelligence Solutions the right, or create the obligation on the part of Music Intelligence Solutions, to administer any use of any Composition, including a Licensed Song, other than in connection with a Licensed Use.
5.3. Allocation of Publishing Receipts. (a.) For its services hereunder, Music Intelligence Solutions shall retain and be paid Fifty percent (50%) of the Gross Receipts derived from the Licensed Song pursuant to or as a result of the use contemplated by the relevant Licensed Use for the life of the subject use. (b.) User shall be paid by Music Intelligence Solutions Fifty percent (50%) (“Writer’s Revenue”) of the Gross Receipts paid to Music Intelligence Solutions as a result of Licensor’s interest in the Licensed Song pursuant to or as a result of the use contemplated by the relevant Licensed Use for the life of the subject use. Music Intelligence Solutions shall not be responsible for the payment of any third party payments, including but not limited to artists, producers, performers and other persons who performed in the making of the Recordings and other royalty participants, and all music publishing licenses and royalties including synchronization and digital mechanical licenses and royalties, with respect to any subject Licensed Song, and User shall only look to those payments from Music Intelligence Solutions specifically provided for herein. (c.) Payment of any amounts due to User shall be made by Company on a quarterly basis, forty-five (45) days after quarter ends. Any balance due under $50 (aggregated for all Licensees) shall be rolled into the following quarter and paid only when the balance exceeds $50.
5.4. Derivative Works of Uploaded Content. User hereby agrees that any Sync User may use less than an entire composition, and may edit, loop, enhance, or modify the sound recording, provided that any such change shall not alter the fundamental character of the Content, and any such change shall not give rise to any ownership rights or claims, including copyright, on the part of the Sync User. User accepts and agrees that with respect to any Licensed Use, including those in a foreign territory outside of the United States, such changes or alterations may be made without prior approval.
5.5. You are asked to confirm that all of the songs you submit are original to you and/or controlled by you, and if anyone else successfully proves in a legal proceeding that they in fact wrote them, you will pay for any losses suffered as a result.
5.6. Exclusive licenses will be granted only with your express approval.
5.7. Music Intelligence Solutions does not pay you for transmitting your material to a Sync User to audition via the Internet or otherwise; payment is due when the Sync User actually licenses the material.
6. Proprietary Rights In Company’s And Third-Party Content And Technology
6.1. Company’s Ownership Of Proprietary Rights. The Service contains Content and technology of Company that is protected by copyright, trademark, patent, trade secret and other laws.
6.2. Created Content. Any content created using the Service shall be owned by Company. For example, all copyrights in Hit Song Science™ (HSS) score, music discovery playlist, reviews, ratings, rankings, charts, playlists, podcasts, blogs, newsletters, broadcasts, XML, and RSS shall be owned by Company and licensed to you and other users of the Service pursuant to the terms hereof.
6.3. Service. You acknowledge that the Service contains copyrighted material, trademarks, and other proprietary information of Company and its licensors and you agree that except for the limited license granted hereunder, all right, title and interest to the Service and the contents therein remains with Company or third parties.
6.4. Websites. The compilation of content comprising the Service and its Websites are the exclusive property of Company and protected by U.S. and international copyright laws.
6.5. Software. All software used on this site is the property of Company or its software licensors and is protected by United States and international copyright laws. You agree not to translate, reverse engineer, decompile, disassemble, modify or create derivative works based on any of the software constituting or provided through the Service. You agree not to circumvent any technology used by Company or its licensors to protect content accessible via the Service.
6.6. Trademarks. Music Intelligence Solutions, Music Universe, Music Discovery Universe, Hit Song Science, uPlaya, uPlaya.com, uplaya, uplaya.com, and uplaya trademarks and servicemarks are the property of Music Intelligence Solutions, Inc. (“the Marks”). Without prior permission from Music Intelligence Solutions, Inc., you agree not to display or use the Marks in any manner.
6.7. Patents. One or more patents apply to this site and to the features and Service accessible via the site. You agree that all rights, title and interest to such patents remain with Music Intelligence Solutions, Inc.
6.8. Limited License Of Company Content To User. Subject to the terms and conditions hereof, Company hereby grants you a limited, revocable, nonsublicensable license to display the Company Content (excluding any software code) solely for your personal use in connection with viewing the Service’s Websites. No other rights are granted to User in Company Content other than those rights granted explicitly herein. You further agree to comply with all other restrictions on copying and distribution of content stated in these Terms.
7. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Company to terminate all privileges of any User who repeatedly infringes the copyright rights of others upon receipt of prompt notification to Company by the copyright owner or the copyright owner’s legal agent.
To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see Section 512(3) of the Copyright Act to confirm these requirements):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. 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.
3. 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. Providing URLs in the body of an email is the best way to help us locate content quickly.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party 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.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Such written notice should be sent to our designated agent as follows:
DMCA Complaints
Music Intelligence Solutions
208 E. Broughton St.,
Savannah, GA 31401
Fax: 912-232-1962
Please also note that under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
8. Privacy Policy. You are aware of our Privacy Policy located at http://artists.uplaya.com/page/privacypolicy. Use of the Service is governed by the Privacy Policy, which is incorporated into this Agreement by this reference. In the event of an inconsistency between these Terms and the Privacy Policy, these Terms shall control.
9. Service Terms.
9.1. General. Company reserves the right, but has no obligation, to take any of the following actions in its sole discretion at any time and for any reason, and you agree that we will not be liable to you or any third party for taking any of these actions.
9.2. Company’s Right To Control Service. Company reserves the right, in its sole discretion, to reject, refuse to post or remove any Content (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Service or its Websites at any time, for any or no reason, with or without prior notice, and without liability.
9.3. Fees. You acknowledge that Company reserves the right to charge for the Service and its Websites and to change its fees from time to time in its discretion. If Company terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
9.4 Membership Subscription Renewals. You agree that the premium subscription will automatically renew and that Company has the right to automatically renew your Membership of this Service at its discretion and may do so with or without providing you notice. You acknowledge that Company reserves the right to continue to charge for the Service and its Websites and to change its fees from time to time in its discretion. You can choose to cancel your account subscription and not automatically renew your Membership via your account page, or write to the Company at info@uplaya.com to submit a request in writing at least two (2) weeks in advance of the expiration of your current Membership. If by your own doing or per your request the Company cancels your Membership, you shall not be entitled to the refund of any unused portion of subscription fees.
9.5. Monitoring. Company may monitor the Content available on the Service.
9.6. Availability. Company may change, suspend, or discontinue all or any part of the Service at any time, with or without reason. You acknowledge that the operation of our site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Company shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. Company has no obligation to continue producing or releasing new versions of the Service or any associated software and/or Content.
9.7. Account Access. Company may restrict, suspend, or terminate your access to all or any part of the Service, deactivate your account, or delete your account and all related information and files in your account. You acknowledge, consent and agree that Company may access, preserve, disclose or delete your account information and Content if required to do so by law or in a good faith belief that such act is reasonably necessary to: (a.) comply with legal process; (b.) enforce this Agreement; (c.) respond to claims that Content violates the rights of third-parties; (d.) respond to your requests for customer service; or (e.) protect the rights, property, or personal safety of Company, its users and the public. After a period of inactivity, Company reserves the right to disable or terminate a user’s account. If an account has been deactivated for inactivity, the name associated with that account may be given to another Registered User without notice to you or such other party.
10. Additional Specific Service Conditions.
10.1. Audio Hosting. As used herein “Audio Hosting” shall mean the upload, storage, web serving, and streaming of a single unit of digital audio media and associated metadata.
10.2. Payment. If by reason of death or disability you are unable to receive the Service for which you contracted, you and your estate may elect to be relieved of payment obligations for the Service excepting those received before death or onset of disability.
10.3. uPlaya.com and uPlaya™ iTunes Plugin Beta. You agree that you recognize that the uPlaya.com website is currently a ‘beta’ release and is undergoing testing. You further agree that you recognize that the uPlaya™ iTunes Plugin is currently a ‘beta’ release and is undergoing testing. You agree that you understand that uPlaya.com and the uPlaya™ iTunes Plugin may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software ‘bugs’ still being actively fixed by Company’s engineering team and may have other issues affecting availability and functionality.
10.4. Album Art and Music Samples On uPlaya.com. You acknowledge that album art and music samples made available by Music Intelligence Solutions, Inc. at uPlaya.com or any of its affiliate websites or services are the copyrighted, trademark and proprietary information of third-parties and, with respect to such material, any reproduction, publication, further distribution or public exhibition of materials provided at this site, in whole or in part, is strictly prohibited.
10.5. The uPlaya™ iTunes Plugin. If you choose to install the uPlaya™ iTunes Plugin, the terms of this Agreement apply to such installation and use. Further, you specifically agree to the following terms and conditions:
10.5.1. Privacy Policy. You are specifically aware of and agree to the terms our Privacy Policy located at http://artists.uplaya.com/page/privacypolicy concerning the uPlaya™ iTunes Plugin. In particular, you agree that, if you choose to install the uPlaya™ iTunes Plugin, you understand that it operates as follows:
(i) The uPlaya™ iTunes Plugin will be sending your music listening data (including a list of all songs and playlists in your music library on your computer) to the uPlaya.com servers. When you install the uPlaya ITunes Plugin and create a user account on uPlaya, you opt-in to use uPlaya’s music discovery technology, whereby select clips of songs from your library will be uploaded to uPlaya servers, and matched with music metadata collected from your friends and other uPlaya users. This is designed to make sure the sample-clips of music that display on your profile are appropriately representing the music you listen to in your library, and to ensure broad availability of audio clips to enhance music discovery for all our users.
(ii) This data will be saved by Music Intelligence Solutions, Inc in our databases;
(iii) However, by choosing to install the uPlaya™ iTunes Plugin, your music listening data and songs in your music library are reported publicly in a personally identifiable way, but within your control. Specifically, part of the functionality of the uPlaya.com website is that you may create a personal profile that publicly reflects your music listening habits as determined by the uPlaya™ iTunes Plugin. Your music listening data is also used to generate music recommendations, as well as to calculate music-compatibility scores with other users on uPlaya;
(iv) The uPlaya™ iTunes Plugin is designed to automatically self-update itself (without asking permission from you). You specifically agree that Company may automatically update and install new software upgrades for the uPlaya™ iTunes Plugin, without any action by you.
10.5.2. The uPlaya™ iTunes Plugin incorporates the Adobe® Flash® run-time and Adobe® Flash® Player software (collectively ‘Flash Software’) by Adobe Systems Incorporated, Copyright 1995-2006 Adobe Macromedia Software LLC. All rights reserved. Adobe and Flash are trademarks of Adobe Systems Incorporated.
10.5.3 You agree that the Flash® Software is the property of Adobe® Systems, Incorporated. You agree that any reproduction or copying, publication or distribution of the Flash® Software, in whole or in part, is strictly prohibited.
10.5.4. You agree not to translate, reverse engineer, decompile, disassemble, or otherwise reduce the Flash Software to a human-perceivable form. You agree not to modify or create derivative works based on the Flash Software. You agree not to circumvent any technology used to protect the Flash Software.
10.5.5. You agree that all disclaimers and limitations of liability set forth in Paragraphs 12.1 through 12.8 and Paragraph 13 set forth below apply to your download or use of the Flash® Software.
11. Disputes Between Users. You are solely responsible for your interactions with other Users of the Service or its Websites. Company reserves the right, but has no obligation, to monitor disputes between you and other Users.
12. Term And Termination
12.1. Term. This Agreement shall become effective upon your acceptance of the Terms by your use of the Service and shall remain in effect in perpetuity unless terminated hereunder.
12.2. Termination. Either you or Company may terminate your account at any time, for any reason or no reason, without explanation. You agree that Company may, under certain circumstances and without prior notice, immediately terminate your account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to: (a.) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b.) requests by law enforcement or other government agencies, (c.) a request by you (self-initiated account deletions), (d.) discontinuance or material modification to the Service (or any part thereof), (e.) unexpected technical or security issues or problems, (f.) extended periods of inactivity, (g.) you have engaged in fraudulent or illegal activities, and/or (h.) nonpayment of any fees owed by you in connection with the Services. Company shall not be liable to you or any third-party for any termination of your account, made in Company’s sole discretion.
12.3. Public Content. With respect to Content you mark with a Creative Commons license prior to deleting your account or terminating this Agreement, such license shall survive such deletion or termination. Company’s license to display, sublicense, and syndicate Band Information also survives deletion of your accounts.
12.4. Performance Royalty Waiver. Any performance royalty waiver made by Company before you deleted your Audio Content survives the deletion. It is solely your responsibility to identify, contact and cancel the performance waiver from those parties for whom we had waived the rights on your behalf.
12.5. Breach. In the event your access to the Service is suspended due to the breach of this Agreement, you agree that all fees then paid to Company by you shall be nonrefundable. In the event of termination by Company, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system.
13. Disclaimers, Warranties And Limitations On Liability
13.1. Disclaimers. Company is not responsible for any incorrect or inaccurate Content posted on or through the Service or its Websites, whether caused by Users or by any of the equipment or programming associated with or utilized in the Service or its Websites. Profiles created and posted by Users may contain links to other websites. Company is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Company. Inclusion of any linked website on or through the Service or its Websites does not imply approval or endorsement of the linked website by Company. When you access these third-party sites, you do so at your own risk. Company takes no responsibility for third party advertisements which are posted on or through the Service or its Websites, nor does it take any responsibility for the goods or services provided by its advertisers. Company is not responsible for the conduct, whether online or offline, of any User of the Service or its Websites. Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Company Services or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Service or its Websites. Under no circumstances shall Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Service or its Websites, attendance at a Company event, from any Content posted on or through the Service or its Websites, or from the conduct of any Users of the Service or its Websites, whether online or offline.
13.2. Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OR INFORMATION COLLECTED FOR OR PROVIDED TO USERS UNDER THIS AGREEMENT. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE OR ANY SERVICES PROVIDED TO THE REGISTERED USER UNDER THIS AGREEMENT. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN THE EVENT OF COMPANY’S BREACH OF WARRANTY, THE SOLE AND EXCLUSIVE REMEDY SHALL BE A REFUND OF THE AMOUNTS PAID FOR THE SERVICE BY THE REGISTERED USER.
13.3. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY YOU FOR YOUR ACCOUNT.
13.4. Exclusions
CERTAIN JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OF THE ABOVE LIMITATIONS IN SECTION 12.2 and 12.3 MAY NOT APPLY TO YOU.
13.5. U.S. Export Controls. Software available in connection with the Service (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
13.6. Accuracy. Opinions, advice, statements, offers, information or other Content made available through the Service are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Company does not: (a.) guarantee the accuracy, completeness or usefulness of any information on the service, and (b.) adopt, endorse nor accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party other than Company. Under no circumstances will Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the service, or transmitted to or by any registered users.
13.7. Advertisements. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
13.8. Beta Releases Of All Or Portions Of The Service. The Service or portions of the Service may be labeled ‘Beta.’ All disclaimers and limitations of liability set forth herein apply to any Service or portion of the Service labeled ‘Beta.’ Further, you specifically agree that you understand that any Service or portion of the Service labeled ‘Beta’ may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software ‘bugs’ and may have other issues affecting availability and functionality. In addition to all other disclaimers and limitations of liability herein, you specifically agree that Company is not responsible or liable for any error, problem, omission, malfunction, interruption, defect, delay, or failure, in any regard, concerning any Service or portion of the Service labeled ‘Beta.’
14. Indemnity. You agree to indemnify and hold harmless Company, its officers, directors, employees, agents and third parties, harmless for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your connection to or Use of the Service, including any breach by you of the terms of this Agreement and any claims arising from the Content you submit, post, transmit or make available through the Service or its Websites, or your use of the Service or its Websites. You specifically indemnify Company of any claims that may arise from the inaccuracy of the Gig Listing, Band Information, or Contest Entry.
15. General Provisions
15.1. Rights Reserved. Company and user retain all rights and licenses not explicitly granted hereunder.
15.2. Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
15.3. Choice of law and forum. These Terms, the relationship between you and Company, and any dispute involving the Service, the Websites or these Terms, shall be governed by (and construed and interpreted in accordance with) the laws of California, without regard to its conflict of law provisions or your actual state or country of residence. You hereby irrevocably submit to the personal and exclusive jurisdiction and venue of the federal and state courts serving the City and County of San Francisco, other than for actions to enforce any order or judgment entered by such courts, in the event of any dispute arising out of or relating to this Agreement.
15.4. Sever-ability and Waiver. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, and the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision. The failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
15.5. Survival. Unless otherwise explicitly stated, these Terms will survive the expiration or deletion your account for any reason. Company may assign any or all of its rights hereunder in the event of a merger or acquisition of all or substantially all of the assets to which this Agreement relates.
15.6. No Partnership. The parties bear the relationship to each other of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, or agency relationship between them, nor shall either party have the power or authority by virtue of this Agreement to bind the other.
15.7. Entire Agreement. This Agreement, contains the entire agreement between you and Company regarding the use of this Service, and it supersedes all prior and contemporaneous agreements, promises, representations, warranties, and understandings of the parties regarding the same subject matter. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Company services, affiliate services, third-party content, or third-party software, but unless explicitly noted otherwise, this Agreement shall govern in the event of any inconsistency between this Agreement and any such additional terms and conditions. In particular, this Agreement shall govern in the event of any inconsistency between this Agreement and and of the following additional agreements: the uplaya Gig Listing Agreement, the uplaya Hosting Upload Agreement, the uplaya Artist Agreement, the uplaya Reviewer Rewards Agreement, and the uplaya Radio Feed Partner Agreement.
15.8. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms that you bring must be brought within one (1) year after such claim or cause of action arose or be forever barred.
15.9. Third Party Rights. Nothing in this agreement shall confer any rights or benefits to third parties (except those that have been specifically granted in other points of this document to Company for approaching third parties).
15.10. Counsel. Although we have attempted to outline above the terms on which you may use the Service in straightforward English, please be aware that these terms, if accepted by you, create a binding legal agreement between you and Company. We strongly urge that before accepting these terms you print out a copy and review it with your attorney, manager and other representatives and if you have no such representatives that you seek other independent qualified guidance.
Please contact us at: info@uPlaya.com with any questions regarding this Agreement.
BY USING THIS SERVICE YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.