MUSIC INTELLIGENCE SOLUTIONS™, INC., DOING BUSINESS AS UPLAYA™ (the “COMPANY”), IS WILLING TO GRANT YOU RIGHTS TO ESTABLISHAN ACCOUNT TO USE ITS WEBSITE AND SERVICES AND A LICENSE FOR THE CONTENT SPECIFIED HEREIN ONLY UPON THE CONDITION THATYOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT” BELOW, YOU WILL INDICATE YOUR AGREEMENT WITH THEM AND CREATE A LEGAL, BINDING CONTRACT BETWEEN YOU AND THE COMPANY. IF YOU AREENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THEAUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, “YOU” OR “YOUR” SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREEWITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN THE COMPANY IS UNWILLING TO GRANT YOURIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DELIVERED BY THIS SITE.
I. GENERAL TERMS AND CONDITIONS
1. The Service and the Purpose of These Terms. THE PURPOSE OF THESE TERMS IS TO DEFINE THE TERMS AND CONDITIONS UNDERWHICH MIS WILL ASSIST YOU IN PROMOTING AND MARKETING YOUR MUSIC OR FINDING NEW MUSIC. ALL RIGHTS GRANTED TO MISUNDER THESE TERMS ARE “NON-EXCLUSIVE” AND WOULD NOT PREVENT YOU FROM SIGNING ON WITH A LABEL TO SELL YOUR MUSIC. THESE TERMS ALLOW THE COMPANY TO ASSIST IN THE MARKETING, PROMOTION AND EXPOSURE OF THE ARTISTS WHO UPLOADMUSIC AND OTHER CONTENT TO THE WEBSITE AND RELATED SERVICES.
1.2. Modification of Agreement. MIS may modify this Agreement from time to time and will post a copy of the amended Agreement at http://www.uplaya.com/page/termsandconditions. If you do not agree to, or cannot comply with, the Agreement as amended, you must stop using the Services or, if applicable, cancel your subscription. Continued use of the Services will be considered an acceptance of the amended Agreement. If a matter orof dispute arises that is not covered by this Agreement, it will be resolved at the Company’s sole discretion within the bounds of the governing law. If you disagree with the resolution, your sole recourse will be to de-activate your account.
1.3. Parental Advisory. If you are a user between the ages of 13 and 17, you must review this Agreement with your parent or guardian and you may not agree to this Agreement without your parent or guardian’s consent. The Services and Licensed Application are not designed to attract children under the age of 13 and we do not intentionally collect personal information from children on our Site. If you are under the age of 13, DO NOT provide any personal information on this Site. Because the uPlaya Services and Licensed Application may provide access to music that contains explicit content including strong language or depictions of violence, sex or substance abuse, parental discretion is advised for all users ages 13 to 17.
1.5. Basic Agreement. By using the Service, you (a) agree to be bound by this Agreement, (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 this Agreement and (c.) represent and warrant that any such entity agrees to be bound by this Agreement. Please read this Agreement carefully and save it. If you do not agree with the terms of this Agreement, you should leave the uPlaya.com website and associated applications and should not register for or use the Service.
2. Representations and Warranties. IN ORDER FOR THE COMPANY TO PROMOTE YOUR MUSIC, THE COMPANY MUST HAVEASSURANCES THAT YOU HAVE THE RIGHT TO ENTER INTO THIS AGREEMENT AND THAT YOU UNDERSTAND YOUR OBLIGATIONS TO THE COMPANY.
In consideration for your use of the Services, you represent and warrant to the Company as follows:
2.1. Authority To Enter Into This Agreement. You have all necessary right, power and authority to enter into and perform as required under this Agreement. If you are not an individual, you are an entity duly organized, validly existing and in good standing under the laws of your jurisdiction of organization. You are not barred from receiving the Services under the laws of the United States or other applicable jurisdiction. You are not located in a country that is subject to a U.S. embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you are not listed on any U.S. Government list of prohibited or restricted parties.
2.2. Age. You are 13 years old or older. Under United States law, you must be at least 13 years of age to use the Services. If you are not 13 years old or older, you are not entitled to register for or use the Services as a Visitor or Member. If you are between the ages of 13 and 17, you may only enter into this Agreement through your parent or guardian. By clicking on the “I Accept” button, you are representing that your parent or guardian has read these terms and conditions with you and consents to them on your behalf.
2.4. Agreement to Pay. If you elect to become a User of the Services, you agree to pay all fees and charges associated with your subscription on a timely basis. All such fees and charges (including any taxes and late fees, as applicable) will be charged on your credit card. You will maintain valid credit card information in your Account Information. In the event you fail to timely pay all amounts due hereunder or fail to maintain valid credit card information in your Account Information, the Company may de-activate, suspend or terminate your account. By accepting this Agreement, you are authorizing the Company to charge your credit card account for all fees relating to the Services, for the annual fees for the automatic renewal of such Services (unless you provide the Company with written notice of your written termination or non-renewal of such Services) and for any other fees agreed to by you.
2.5. No Conflicts. Your acceptance of this Agreement does, and your performance of your obligations under this Agreement will, not (A) conflict with or result in a violation or breach of any of the terms, conditions or provisions of, in the case of a User that is not an individual, your certificate or articles of incorporation or by-laws (or other comparable corporate charter documents), operating agreement, trust or partnership agreement or other constituent document, (B) conflict with or result in a violation or breach of any term or provision of any law or order applicable to you, or (c.) conflict with or result in a violation or breach of, constitute (with or without notice or lapse of time or both) a default under, require you to obtain any consent, approval or action of, make any filing with or give any notice to any person as a result or under the terms of any contract or license to which you are a party or by which you are bound.
2.6. No Consents. No consent, approval or action of, filing with or notice to any governmental or regulatory authority on your part is required in connection with the acceptance and performance of this Agreement.
2.7. No Proceedings. There are no actions or proceedings pending or threatened against, relating to or affecting you which could reasonably be expected to result in the issuance of an order restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by this Agreement.
Additional Terms and Modification of Terms. THE COMPANY MAY HAVE TO CHANGE THESE TERMS TO ADDRESS CHANGES IN THECOMPANY’S SERVICES PROVIDED TO YOU (TO ADD SERVICES OR CHANGE HOW CERTAIN SERVICES WORK) OR TO ADDRESS ISSUESRELATING TO HOW YOU CAN USE THE SERVICES. THIS SECTION ADDRESSES HOW CHANGES TO THESE TERMS ARE MADE.
3.1. Additional Terms. To use the Services, 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.
3.2. Third-Party Terms. The Services may integrate with other services provided by third parties. If you access or use the Services through a third-party website or other interface, or use software or other product in connection with the Services, you may be subject to additional terms and conditions. You acknowledge that the Company has no control over such third-party terms and conditions and, therefore, the Company will not be liable to you as a result of anything contained in any third-party terms and conditions.
3.3. Modification of Terms. The Company may modify these Terms. You agree that such modification shall be effective upon posting on the Website and you will be bound to any changes when you use the Services after such modification is posted. It is therefore important that you review these Terms on the Website 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 these Terms will constitute acceptance by you of such changes. Your sole remedy should you not agree with the altered Terms shall be to de-activate your account and to cease active use of the Service. You will not be entitled to a refund of any fees paid to the Company by you prior to such termination.
*4. Your Conduct and Activities During Use of the Service. THESE ARE THE RULES TO BE FOLLOWED WHEN USING THE COMPANY’S SERVICESAND WEBSITE. THESE RULES PROTECT THE PRIVACY AND OTHER RIGHTS OF THE USERS OF THE SERVICES AND THE WEBSITE, INCLUDING YOU. *
4.1. 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 Services, this Site, or its contents for any commercial purposes, nor will you authorize others to do so; and (d) you will not utilize the free one or two 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 accounts.
4.2. 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. The Company will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account and you agree to indemnify and hold harmless the Company, its shareholders, directors, officers, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
4.3. Unauthorized Conduct. You agree that you will not engage in any illegal or prohibited conduct, on or through the Services or its Website, including but not limited to the following:
4.3.1. 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 as well as all United States laws.
4.3.2. 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 e-mail addresses for the purpose of sending unsolicited e-mail or copy or export any e-mail addresses made available on the Website; or (iv) use any information obtained from the Service or its Website in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed by the Company without notice and may result in termination of your account.
4.3.3. 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.
4.3.4. 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 Services or user software or hardware); (iii) interfere with, disrupt, or create an undue burden on the Services 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 Services or engage in real-time dialogue via the Service’s messaging services.
4.3.5. Security. The Company uses technology to protect the digital information provided to or by the Company from unauthorized use. Your use of the Services may be limited by such technology. You acknowledge that, from time to time, the Company may modify or discontinue using such technology. Security modifications made by the Company may from time to time include required updates to the Services. IF YOUATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY, YOU MAY BE SUBJECT TO CIVILOR CRIMINAL LIABILITY.
4.3.6. 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.
4.3.7. Harassment. You agree not to abuse, harass, threaten, intimidate or harm Users or other persons or use any information obtained from the Service in order to do so.
4.3.8. 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 person or entity.
4.3.9. Licensing. You will not sublicense, assign, or transfer the license granted to you under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void. You shall not store or cache any of the Content provided by MIS or permit timesharing on service bureau use, or license, sell, rent, lease, transfer, assign, distribute, display, outsource, disclose or otherwise commercially exploit or make the Services or Content available to any third party other than as specifically permitted under this Agreement.
4.4. 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:
4.4.1. Inappropriate Material. You agree not post on the Service or Website, or transmit to other Users any Content or material which: (i) is illegal, inaccurate, false, misleading, defamatory, abusive, obscene, profane, vulgar, tortious, libelous, or 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 years old; (v) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; (vi) provides 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 person’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, barters, 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) is otherwise offensive or objectionable.
4.4.2. Personal Information. Publicly available profiles posted by a User or other publicly accessible information made available by a User may not have to include their personal information, including telephone number, street address or last name.
4.4.3. Content of Other Users. The Services contain Content of Users and other licensors. Except for Content posted by you or as expressly authorized by this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, prepare any derivative work of or alter in any way, or sell any Content appearing on or through the Service or this Website.
4.5. Linking. When you post or link an outside website to Content hosted on the 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 such purpose.
4.6. 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 the Company are not being filtered, altered, or blocked by your email software or service.
4.7. 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. You agree to notify us immediately of any unauthorized use of your password and/or account. MIS will not be responsible for any losses arising out of the unauthorized use of your member name, password and/or account, and you agree to indemnify and hold harmless the Company, its shareholders, directors, officers, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.
4.8. The Company’s Rights Regarding Conduct and Content. The Company reserves the right to investigate and take appropriate action against anyone who, in the 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. The Company’s action may include, without limitation, reporting you to law enforcement authorities, suspending or terminating your account, removing, refusing or moving offending Content from the Services or Website. If a dispute or claim arises from Content, the Company reserves the right to remove the Content until a bona fide resolution has been reached. The Company will not get involved in the resolution of such claims or disputes. There are no assurances whatsoever that any Content you submit shall actually be utilized on the Company Site or, if so utilized, shall continue to be available for any particular time.
4.9. 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. The Company does not endorse or control the conduct or Content of its Users. User conduct and Content is not necessarily reviewed by the Company and does not necessarily reflect the opinions or policies of the Company. The Company assumes no responsibility or liability for the conduct of its Users or Content uploaded by its Users 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 Services. The Company assumes no responsibility for monitoring the Services or Website for inappropriate conduct or Content. If at any time Company chooses, in its sole discretion, to monitor the Services or Website, the Company nonetheless assumes no responsibility to modify or remove any inappropriate Content and no responsibility for the conduct of any User.
4.10. Reporting. If you become aware of misuse of the Service or its Website by any person, including any inappropriate conduct, Content, or DMCA-related copyright infringements, please report such misuse to the Company. With respect to copyright infringement claims or assertions, or with respect to any other complaint, please identify the complaint in writing and send it to the Company pursuant to the terms of Section 8.2 below.
II. TERMS AND CONDITIONS RELATING TO MEMBERS
5. Proprietary Rights in Content That You Provide to the Service. IN ORDER TO USE THE SERVICES PROVIDED BY THE COMPANY, YOUMUST OWN OR HAVE NECESSARY RIGHTS TO ALL OF THE CONTENT THAT YOU UPLOAD TO THE WEBSITE. THE USE OF SOMEONEELSE’S MUSIC WITHOUT THEIR WRITTEN PERMISSION IS NOT PERMITTED. IN ORDER FOR THE COMPANY TO “MAKE SURE NO GREATSONG GOES UNHEARD” AND HELP YOU PROMOTE AND MARKET YOUR MUSIC AND GIVE YOU EXPOSURE THROUGH THE COMPANY’S SERVICES, IT NEEDS TO BE GRANTED “NON-EXCLUSIVE” RIGHTS TO YOUR MUSIC. THIS LICENSE WILL NOT PREVENT YOU FROMGRANTING ADDITIONAL RIGHTS IN YOUR MUSIC TO PUBLISHERS OR OTHER PROMOTERS IN THE FUTURE. YOU ARE NOT GIVING MISTHE RIGHT TO SELL OR GIVE AWAY DOWNLOADS TO YOUR MUSIC, UNLESS EXPRESSLY AGREED TO IN ADVANCE . (For applicable terms regarding the selling and giving away of downloads of your music, please refer to section 11.5 in these Terms.)
5.1. You Have All Necessary Rights. For all Content that you upload to the Services, you represent and warrant that (a) you own all right, title and interest to the Content or have a valid contractual right to license, use and disclose the Content pursuant to the terms of this Agreement; (b) the Content and any of the copyrights or other intellectual property rights with respect thereto are duly owned by you (or duly owned by the owners thereof and duly licensed to you) and do not infringe on any copyright or intellectual property or other proprietary right of any person or entity; (c.) no royalties, payments, commissions, or other fees will be due to any third party arising out of the performance of the Services by MIS hereunder; and (d) you have informed all necessary third parties of the use, processing, or transfer of the Content to ensure that such third parties have given their consent to the use, processing, and transfer of such Content described herein. 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 Services. 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. You acknowledge and agree to be and remain solely responsible for any and all royalties, payments, commissions, or other fees due to any third party arising out of the performance of the Services by MIS hereunder or the Content uploaded by you. You agree to be and remain solely responsible for any and all costs or damages incurred related to take down notices, publishing costs or other claims arising out of the delivery of the Content to MIS or the performance of the Services hereunder.
5.2. Your Ownership of Proprietary Rights in Uploaded Content. The Company generally does not claim (i) ownership of 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 Services, (ii) any intellectual property rights, including the copyright, in uploaded Content, subject to the non-exclusive license granted herein, or (iii) any performing rights with respect to your Content. After uploading your Content to the Services, you generally continue to retain ownership rights in such Content, and you generally continue to have the right to use your Content in any way you choose. YOU MAY RELINQUISH ADDITIONAL RIGHTS TO YOUR CONTENT BY USING CERTAIN SERVICES OR REGISTERING FOR CERTAIN ACCOUNTS (SEESECTION 11 – ADDITIONAL SPECIFIC SERVICE CONDITIONS).
5.3. License of Uploaded Content to Company. By displaying or publishing (“uploading”) any Content on or through the Services or its Website, you hereby grant to the Company a limited license to (i) use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display, and reproduce such Content (in whole or in part), (ii) prepare derivative works or produce clips of such Content, in any format or medium now known or later developed, and synchronize such Content with photo slideshows or video on and through the Services, its Website or its affiliates, or (iii) otherwise market and promote the Content or any derivative work thereof. The license is non-exclusive (meaning you are free to license your Content to anyone else in addition to the Company), fully paid and royalty-free (meaning that the Company is not required to pay you for the use on the Services or its Website 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 Website and to permit Users to view, hear, read, stream, download and link to your Content), and worldwide (because the Internet, the Services and the Website are global in reach). You agree as part of this limited license to waive any and all fees relating to the Company’s use of your Content pursuant to this Agreement. You represent and warrant that you have sufficient ownership rights to grant this license. YOU ARE NOTGRANTING THE COMPANY THE RIGHT TO SELL OR GRANT FREE DOWNLOADS OF YOUR CONTENT UNLESS SPECIFICALLY AGREED TO IN ADVANCE.
5.4. License for Syndication. You also grant the Company the right to use and sublicense any Content uploaded by you and any derivative works thereof, including, without limitation, songs, images, photos, and Band Information (including 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 the Company’s products and services, including, without limitation, by syndicating and embedding widgets and band pages on third party websites, at the Company’s discretion, without any payment to you or any other persons or companies. The Company may sublicense its right to display your Band Information, photos, and images to anyone. The license is non-exclusive, fully paid and royalty-free, sub-licensable and worldwide and you waive any and all fees relating to the Company’s use of such Content or derivative works thereof pursuant to this Agreement.
5.5. License for Promotional Purposes. If you register your band with or through the Company’s Services or Website, you grant the Company the right to use the Content, including songs, photos, images, and Band Information, for the purpose of promotion of your or of the Company’s products and services without any payment to you or any other persons or companies. You agree that by clicking the “I Accept” button you are granting the Company the licenses described in Sections 5.3, 5.4 and 5.5. The license is non-exclusive, fully paid and royalty-free, sub-licensable and worldwide. You represent and warrant you have the right to grant this license.
5.6. Waiver of Royalties. You grant the Company a waiver of any performance or other royalties on the Content when performed by the Company in a broadcast format such as internet streaming, internet radio, satellite radio, or terrestrial radio. You represent and warrant that you have sufficient ownership of and rights in the Content to grant the Company such fee waiver.
5.6.1. Sub-waiver of Performance Royalties. If you register your Band with or through any of the Services or Website, you grant the Company the right to waive, on your behalf, any and all performance or other royalties on the Content when performed by a third party in a broadcast format such as internet streaming, internet radio, satellite radio, or terrestrial radio. You represent that you have sufficient ownership of rights in the Content to grant the Company such waiver.
5.7. Content Controls. The Company encourages Users to make their Content available under terms that, in the Company’s opinion, are more user-friendly than have become standard in most jurisdictions. Accordingly, we offer the ability to market your Content as, (a) available only in streaming format (not downloadable), or (b) downloadable in MP3 format. By selecting to market your content as available only in streaming format, your music may still be downloaded in MP3 format by registered radio partners of the Company for the purpose of promoting and broadcasting your music. If you want the Company or one of its affiliates to assist you in distributing and selling your Content, please contact the Company at firstname.lastname@example.org. Prior to engaging in any distribution or sales of your Content, you would be required to enter into a separate agreement with the Company.
6. Music Synchronization to Third Parties. THE COMPANY MAY HAVE THE OPPORTUNITY TO LICENSE YOUR MUSIC AS A RESULT OF THE EXPOSURE YOU RECEIVE THROUGH THE USE OF THE COMPANY’S SERVICES AND WEBSITE. THIS SECTION AUTHORIZES THECOMPANY TO ENTER INTO SUCH LICENSES PROVIDED THAT YOU RECEIVE ONE-HALF OF THE LICENSE FEES.
6.1. Grant of Rights. You authorize MIS without any payment to you or any other persons or companies to permit third parties, including but not limited to advertisers, television, cable and radio producers and programmers, website 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, Licensed Applications, Web applications, 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. This Agreement does not grant to anyone the right to make or sell physical recordings of your music. In the event the Company negotiates a licensing fee with respect to such use of your Content, you agree that the Company shall be entitled to 50% of such licensing fee (net of direct costs) and you shall receive the other 50% of such licensing fee (net of direct costs).
6.2. The Company’s Right to Administer. You grant MIS 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 MIS earned by and derived from the Content (excluding, to the extent applicable, the so-called “writer’s share” of publishing monies from public performance fees), in perpetuity.
7. Proprietary Rights in the Company’s and Third-Party Content and Technology. THE COMPANY HAS INVESTED SIGNIFICANT TIMEAND MONEY DEVELOPING ITS SERVICES AND WEBSITE TO BE ABLE TO PROVIDE THE SERVICES TO YOU. THIS SECTION CLARIFIES THATBY USING THE COMPANY’S SERVICES AND WEBSITE, YOU DO NOT BECOME AN OWNER OF THE SERVICES OR WEBSITE AND THAT THECOMPANY RETAINS THE RIGHTS TO EVERYTHING THE COMPANY DEVELOPS. THIS DOES NOT INCLUDE YOUR MUSIC.
7.1. The Company’s Ownership of Proprietary Rights. You acknowledge and agree that the Service contains Content and technology of the Company that is protected by copyright, trademark, patent, trade secret and other laws. Any content created using the Service shall be owned by the 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 the Company and licensed to you and other users of the Service pursuant to the terms hereof. You further acknowledge and agree that the compilation of Content comprising the Services and its Website is the exclusive property of the Company and protected by U.S. and international copyright laws.
7.2. Service. You acknowledge that the Service contains copyrighted material, trademarks, and other proprietary information of the Company and its licensors and you agree that except for the limited license granted hereunder, all right, title and interest to the Services and the Content therein remains with the Company and its authorized licensors, affiliates, successors and assigns.
7.3. Software. All software used on the Website and in the Services is the property of the Company or its software licensors and is protected by U.S. 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 the Company or its licensors to protect Content accessible via the Service.
7.4. Trademarks. Music Intelligence Solutions, Music Universe, Music Discovery Universe, Hit Song Science, Auddy, Auddy Award, Head to Head Game, HSS, Music Universe Talent Search, Music Universe Game, Music Universe Contest, “Make Sure No Great Song Goes Unheard”, “Democratize the Music”, “Democratize the Industry”, uPlaya, uPlaya.com, uplaya, uplaya.com, and uplaya trademarks and service marks are the property of MIS (the “Marks”). Without prior permission from MIS, you agree not to display or use the Marks in any manner. The Services may contain third-party trademarks, service marks, graphics, and logos (the “Other Marks”). You are not granted any right or license with respect to the Other Marks or the trademarks of any third party and agree not to use or reproduce, in whole or in part, any such Other Marks.
7.4.1. Goodwill in the Marks will inure only to the Company’s benefit and you obtain no rights with respect to any of them. You irrevocably assign and will assign to the Company any right, title and interest that you obtain in any of the Marks. You shall not at any time challenge or assist others to challenge the Marks or their registration (except to the extent you cannot give up that right by law) or attempt to register any trademarks, marks or trade names confusingly similar to the Company’s.
7.4.2. You agree that the Company, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to your website) for the purpose of advertising or publicizing your use of the Services.
7.5. Patents. One or more patents apply to this site and to the features and Services accessible via the Site. You agree that all rights, title and interest to such patents remain with the Company.
7.6. Limited License of Company Content to User. Subject to the terms and conditions hereof, the Company hereby grants you a limited, revocable, non-sub-licensable license to display the Company Content (excluding any software code) solely for your personal use in connection with viewing the Services’ Website. No other rights are granted to you 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. This limited license automatically terminates upon the expiration or termination of your account with the Company for any reason.
7.7. Album Art. You acknowledge that album art and music samples made available by MIS 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.
8. Copyright Policy. THIS SECTION PROVIDES YOU WITH INSTRUCTIONS ON HOW TO ALERT THE COMPANY IF YOU BELIEVE SOMEONEHAS VIOLATED YOUR COPYRIGHT IN ANY WAY ON THIS WEBSITE.
8.1. General 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. Company will terminate a User’s privileges to use the service if User is reasonably determined to be a repeat infringer of copyrights, trademarks or other proprietary rights
8.2. Copyright Infringement Notification. To file a copyright infringement notification with the Company, you must send a written communication that includes substantially the following information (please consult your legal counsel or see Section 512 of the Digital Millennium Copyright Act to confirm these requirements):
8.2.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
8.2.2. 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.
8.2.3. 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 Company to locate the material. Providing URLs in the body of an email is the best way to help the Company locate content quickly.
8.2.4. Information reasonably sufficient to permit the Company 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.
8.2.5. 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.
8.2.6. 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.
8.2.7. Such written notice should be sent to our designated agent as follows:
Music Intelligence Solutions, Inc.
ATTN: David Meredith
208 E. Broughton St.,
Savannah, GA 31401
Please also note that under Section 512(f) of the Digital Millennium Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
10. Service Terms. IN ORDER FOR THE COMPANY TO PROVIDE THE SERVICES, IT MUST MAINTAIN CONTROL OVER THE WEBSITE. THISSECTION OUTLINES THE COMPANY’S RIGHTS WITH RESPECT TO THE WEBSITE.
10.1. General. The Company reserves the right, but has no obligation, to take any of the actions described in this Section 10 in its sole discretion at any time and for any reason, and you agree that the Company will not be liable to you or any third party for taking any of the actions described in this Section 10.
10.2. Right to Control Service. The 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, de-activate, suspend, or terminate your access to all or any part of the Services or its Website at any time, for any or no reason, with or without prior notice, and without liability.
10.3. Fees. You acknowledge that the Company reserves the right to charge a fee for the Services and its Website and to change its fees from time to time in its sole discretion. The Company shall, from time to time, post its fees to be charged with respect to each of the Services to be provided. You agree to pay all applicable fees in accordance with the Services you use. If the Company deactivates or terminates your membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
10.4. Monitoring. The Company may monitor the Content available on the Service. Despite the Company’s monitoring, you shall be solely responsible for ensuring your Content complies with these Terms.
10.5. Availability. The Company may change, suspend, or discontinue all or any part of the Services at any time, with or without reason. You acknowledge that the operation of the Services and Website may encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and the Company shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. The Company has no obligation to continue producing or releasing new versions of the Service or any associated software and/or Content.
10.6. Account Access. The Company may restrict, de-activate, 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 the 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 the Company, its Users, third parties or the public. After a period of inactivity, the 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 User without notice to you or such other party.
III. TERMS AND CONDITIONS RELATING TO LICENSED APPLICATIONS
11. Additional Specific Service Conditions. SOME OF THE SERVICES OFFERED BY THE COMPANY REQUIRE SPECIFIC AND ADDITIONALRULES, RIGHTS OR RESTRICTIONS. THIS SECTION DISCUSSES THOSE SERVICES AND THE ADDITIONAL RULES, RIGHTS OR RESTRICTIONS, ALL OF WHICH ARE INTENDED TO PROTECT YOU AND ASSIST THE COMPANY IN PROMOTING AND MARKETING YOUR MUSIC.
11.1. Licensed Applications. The service-specific terms and conditions in this Section 11 apply to the Service(s) referenced and, subject to the next sentence, apply in addition to, and shall not serve to limit, the general terms and conditions of this Agreement, including the disclaimers and exclusions contained in Section 12. However, to the extent that the terms and conditions in this Section 11 conflict with the general terms and conditions of this Agreement, the terms and conditions in this Section 11 will control over the conflicting terms solely with respect to the specific Service to which they refer.
11.2. uPlaya.com and uPlaya™ iTunes Plugin Beta
11.2.1. You acknowledge that the uPlaya.com Website is currently a “beta” release and is undergoing testing. You further acknowledge 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 the Company’s engineering team and may have other issues affecting availability and functionality.
(i) The uPlaya™ iTunes Plugin will send 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 matched with music metadata collected by uPlaya. 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 MIS in our databases.
(iii) 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 (without asking permission from you). You specifically agree that the Company may automatically update and install new software upgrades for the uPlaya™ iTunes Plugin, without any action by you.
11.2.3. The Services incorporate 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.
11.2.4. 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.
11.2.5. You agree not to translate, reverse-engineer, decompile, disassemble or otherwise reduce the Flash Software or any MIS software to a human-perceivable form. You agree not to modify or create derivative works based on the Flash or any MIS Software. You agree not to circumvent any technology used to protect the Flash Software of any MIS software.
11.2.6. You agree that all disclaimers and limitations of liability set forth in Paragraphs 11.1 through 11.8 and Paragraph 12 set forth below apply to your download or use of the Flash® Software or any MIS software.
11.3. Premium Subscription. If you purchase a Premium Subscription and submit any Content, you hereby grant additional rights to Company as follows:
11.3.1. Additional License Regarding Premium Subscription and Sync Partners. You authorize the Company to grant a current, non-exclusive, royalty-free, worldwide and fully paid-up license to the Company with regard to your Content and any other digital radio partners existing today or added in the future to:
(i) Reproduce, distribute, perform publicly, display publicly, broadcast, encode, edit, alter, modify, reproduce, transmit, manufacture, distribute, synchronize and perform digitally the Content in whole or in part, alone or in compilation with content provided by third parties, through any medium now known or hereafter devised to the extent deemed necessary by Company or Sync Partners, each in its sole discretion, in connection with the digital broadcasting of the Content via the Sync Partner’s digital radio service and the advertising, promotion and marketing of the Sync Partner’s website and services.
(ii) Use any trademarks, service marks or trade names incorporated in the Content or associated with any artists, producers or other individuals whose performances are embodied in the Content, to the extent deemed necessary by the Company or Sync Partners, each in its sole discretion, in connection with the digital broadcasting of the Content via the Sync Partner’s digital radio service and the advertising, promotion and marketing of the Sync Partner’s website and services.
(iii) Use the name and likeness of any artists, producers or other individuals whose performances are embodied in the Content, to the extent deemed necessary by the Company or Sync Partners, in its sole discretion, in connection with the digital broadcasting of the Content via the Sync Partner’s digital radio service and the advertising, promotion and marketing of the Sync Partner’s website and services.
11.3.2. Disclaimer. Without limiting any other provision of this Agreement, you agree that the Company and Sync Partners shall not be obligated to obtain any other license, from any person, firm, corporation or other entity, in connection with the exploitation or use of any of the Content, trademarks, trade names and likenesses, and/or any other rights granted to you by the Company or our Sync Partners in this Agreement, in any country or territory of the world, including, without limitation, any performance right organization, mechanical royalty collection organization or society, music publisher, administrator, record label or other company.
11.4. Record Label Subscription. IF YOU ARE A RECORD LABEL, YOU MAY USE THE SERVICES AND WEBSITE ON BEHALF OF YOUR ARTISTS IN ACCORDANCE WITH THE TERMS SET FORTH BELOW. THE COMPANY WILL RECEIVE ONLY THE LIMITED, NON-EXCLUSIVE LICENSE TO ASSIST YOUIN MARKETING, PROMOTING AND GETTING EXPOSURE FOR YOUR ARTISTS AND THEIR MUSIC.
11.4.1. If you purchase a Record Label Subscription, you hereby grant the following rights and make the following representations and warranties to the Company:
(i) For all Content that you upload to the Services, you represent and warrant that (a) you have a valid agreement and are the exclusive or non-exclusive licensee of the Content with a right to sublicense, use and disclose the Content pursuant to the terms of this Agreement; (b) the Content and any of the copyrights or intellectual property rights with respect thereto are duly owned by the owners thereof and duly licensed to you and do not infringe on the copyright or intellectual property or other propriety right of any person or entity; (c.) no royalties, payments, commissions or other fees will be due to you or any third party arising out of the performance of the Services by the Company hereunder; and (d) you have informed all necessary third parties of the use, processing or transfer of the Content pursuant to this Agreement, including to all such owners of the Content, to ensure that such third parties have given their consent to the use, processing and transfer of such Content described herein.
(ii) You agree to pay all royalties, fees and other monies owing to any person by reason of any Content posted by you to or through the Services. You further guarantee that the compositions, recordings, lyrics, text and other materials contained in the Content are original, created only by those persons you represent 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. You acknowledge and agree to be and remain solely responsible for any and all royalties, payments, commissions or other fees due to any third party arising out of the performance of the Services by the Company hereunder or the Content uploaded by you. You agree to be and remain solely responsible for any and all costs or damages incurred relating to take down notices, publishing costs or other claims arising out of the delivery of the Content to MIS or the performance of the Services hereunder.
(iii) You have a valid right to sublicense the Content and to grant the sub-licenses set forth in this Agreement with respect to all such Content.
(iv) The Company grants bulk discounts to Record Labels for bulk subscriptions to the Services.
11.5. Promotional Uploads. The Company may offer you the opportunity through one of its partners or affiliates or through a third party to license your Content for a promotional download. In that event, you will have the opportunity to “OPT IN” and grant the Company the right to download your content for such promotion. Once you have opted in, you will not be able to opt out of that particular download.
11.6. Contest Entry.
11.6.1. All contest entries are subject to the applicable official rules (the “Official Rules”) which are available at http://uplaya.com/contests/. Each contest is different and will have its own set of rules. In the event of a conflict between these terms and the Official Rules for a contest, the Official Rules shall govern the applicable contest.
11.6.2. You may be required to grant the Company the exclusive rights to sell and exploit your Content as a condition to entering a contest. In addition, you must satisfy the eligibility rules prior to entering a contest. Please consult the applicable contest Official Rules for more information.
11.7. iPhone – Licensed Application,
11.7.1. The Company grants to you a non-transferable license to use the Licensed Application on any iPhone or iPod touch that you own or control as permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. If you subscribe to any of the Services or the Licensed Application, this license is contingent upon your payment of any applicable subscription fees and your compliance with any other terms and conditions applicable to you. Failure to pay the applicable subscription fees or comply with all applicable terms and conditions may a result in the immediate termination of your right to use the Services and Licensed Application. The Company reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF SERVICES OR LICENSED APPLICATIONNOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
11.7.2. By accepting these terms, you hereby grant to the Company the non-exclusive perpetual, fully paid and royalty-free, sub-licensable, worldwide right and license to, in any format or medium now known or later developed, use, copy, modify, adapt, translate, publicly perform, publicly display, reproduce, and prepare derivative works of: (i) the Content (in whole or in part) associated with and/or contained in the Licensed Application; and (ii) any and all names, likenesses, biographical material, logos, marks or trade names of you or any individuals performing or otherwise represented in such content or the artist or band included or referred to in such content. You agree to accept the standard terms and conditions for mobile applications maintained by App Distributor(s) and to perform such tasks as may be reasonably necessary to comply with such terms and conditions. The Company will retain ownership of all other intellectual property rights, including without limitation interface designs, algorithms, patents, techniques, trademarks, software and programming logic contained in the Licensed Application. You waive any and all royalties or other fees related to the licenses granted herein.
11.7.3. You represent and warrant that (i) all of your Content is appropriate to include in the Licensed Application, unless such Content is specifically marked as not appropriate for the Licensed Application; (ii) you own and/or have obtained and will maintain the necessary legal rights to provide all Content contained in or transmitted through the Licensed Application, and neither such Content nor its use or distribution in or through the Licensed Application will infringe or violate any intellectual property or other rights of any third party; (iii) that any Content you submit for inclusion in the Licensed Application shall comply with the standard terms and conditions of the Apple iTunes App Store or other App Store and other relevant App Distributors, and that noncompliance due to the nature of your content may result in removal of your Content from any or all App Distributors without any refund or compensation to you; and (iv) that you accept and will comply with all applicable payment terms. This Agreement is concluded between you and the Company only, and not with Apple, Inc. (“Apple”). In addition, MIS, not Apple, is solely responsible for the uPlaya Services, the Licensed Application and the content thereof.
11.7.4. Customers are responsible for and must provide all telephones, telephone and Internet connectivity services, computers, software, hardware, and other services necessary to access uPlaya Services. MIS makes no representations, warranties, or assurances that your equipment will be compatible with the Services or the Licensed Application.
11.7.5. Updates, Maintenance and Support of Licensed Application. The Company may make available to all users of the Services or the Licensed Application updates at no cost or subject to additional fees in the Company’s sole discretion. “Updates” means any updates, upgrades or error corrections to the Services or the Licensed Application that the Company makes available generally to users of the Services or Licensed Application. Notwithstanding anything else contained in this Agreement, the Company will have no obligation to continue producing or releasing new versions of the Services or Licensed Application or any updates thereto. The Company is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in this Agreement, or as required under applicable law. You and the Company agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Licensed Application.
11.7.6. You acknowledge that in the event of any third-party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party’s intellectual property rights, MIS, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. MIS, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Licensed Application or your possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
11.8. Web Applications.
11.8.1. As part of the Services, uPlaya offers a suite of web applications, including those for social media websites such as Facebook (the “Web Applications”). It does not matter whether you install or use the Web Applications via the uPlaya website or a third-party website (including Facebook.com and other third-party sites). In all cases, your installation and use of the Web Applications is subject to these Terms. The Terms apply in addition to any other terms and conditions to which you may be subject, including other Company terms as well as any terms and conditions from third-party sites, such as Facebook.
11.8.2. In order to install or use the Web Applications, the Company may require you to register with us as an application User. As part of the registration process, you may be required to provide us with personal information, such as your name and email address. If you do not provide us with this information, you may not be able to install or use the Web Applications and/or may not be able to access all of the functionality comprised in the Web Applications.
11.8.4. Use of Web Applications. You may only use the Web Applications for your own personal, non-commercial informational or entertainment purposes only. You must use each of the Web Applications in a responsible manner, and in compliance with all relevant laws, regulations, standards or codes (including Facebook terms and conditions and policies). If you are under 18 years of age, you must obtain a parent or guardian’s consent before accessing, installing or using any of the Web Applications. You must not: (i) use any of the Web Applications to send, post, transmit or communicate any information or material that is unlawful, harmful (including any virus), threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, indecent or profane or that could constitute or encourage a breach of any law; (ii) knowingly transmit any virus, worm, trojan horse or other disabling feature to or via any of the Web Applications; (iii) use any of the Web Applications to send commercial, unsolicited or bulk electronic messages to anyone or in any other way which would constitute an infringement of the Spam Act of 2003; (iv) use any of the Web Applications other than for its intended purpose and in accordance with its intended operation. In particular, you must not tamper with, modify, amend, disable, manipulate, reverse engineer, decompile, distort or enhance all or any part of the Web Applications; or (v) attempt to do, or permit another person to do, any of the above acts. We may review, edit or delete any information or material you or others send or communicate using any of the Web Applications, but are not obliged to do so.
11.8.5. Access to the Web Applications. We may withdraw, disable (temporarily or permanently), suspend or terminate access to, modify or vary any of the Web Applications at any time, without notice to you, including if technical problems, irregularities or misuse occurs. You may also de-install any of the Web Applications at any time, in accordance with the processes and protocols of third party sites (including Facebook). EACH OF THE WEB APPLICATIONS ARE MADE AVAILABLE “AS IS”. AS SUCH, WE DO NOT GIVE ANY WARRANTIES OR MAKE ANYREPRESENTATION IN RELATION TO ANY OF THE WEB APPLICATIONS. IN PARTICULAR, WE DO NOT WARRANT OR REPRESENT THAT ANY OF THEWEB APPLICATIONS ARE FREE FROM DEFECTS, OR THAT IT WILL BE AVAILABLE AT ANY TIME FOR YOUR INSTALL OR USE, OR THAT IT WILL BE COMPATIBLE WITH OTHER APPLICATIONS OR PROGRAMS.
11.9.1. Technical Requirements. As part of the Services, the Company offers a suite of widgets (“Widgets”). You are responsible for obtaining and maintaining all equipment and services needed to access and use the Widgets, and for paying all charges related thereto. The Company is not responsible if any technical incompatibility(ies) or malfunction(s) results in your inability to use, or result in any impaired or less than optimal performance of, the Widgets in connection with your website(s). Subject to your compliance with this Agreement, the Company hereby grants you a non-exclusive, non-transferable, non-sublicensablesub licensable, personal, revocable license to use and display the Widgets on Your Web Site solely for your own personal, non-commercial use as permitted by this Agreement. You are not licensed to use the Widgets for any other purpose, and nothing in these Terms and Conditions shall be deemed to grant you any right, title or interest in the Widgets. The software contained in the Widgets is licensed and not sold to you.
11.10.1. Becoming a Fan. You may have the opportunity to become a “fan” of an artist on the Website. When you agree to become a “fan,” the artist may request personal information from you, including your e-mail address. You do not have to give any artist personal information and you will have the opportunity to “OPT IN” prior to becoming a member of the artist’s mailing list. By opting in and giving your e-mail address to an artist, you are agreeing to be on such artist’s mailing list and to receive e-mails from the artist, including e-mails soliciting or promoting the artist’s products or services. You acknowledge that the Company is not responsible for the content or volume of any such e-mails sent by any artist. You further acknowledge that the Company is not responsible for any dissemination of your e-mail address by the artist to any third party or for any e-mails received by you as a result of such dissemination of your e-mail address. You further acknowledge and agree that the Company does not control the artists to whom your e-mail address is given nor does it have the ability to restrict or control the volume or substance of any correspondence sent to you from an artist. To the extent that you decide to unsubscribe as a fan with respect to any artist, the Company cannot guarantee that the artist will remove your name from such artist’s mailing list or that you will not receive additional correspondence from such artist.
11.10.2. Having Fans. If you are an artist, you acknowledge that from time to time Users of the Services and this Website may become “fans” of yours. The Company agrees to maintain a list of your fans and allow you to provide correspondence to your fan list through the Company’s Website. You acknowledge and agree that you will not copy or export the e-mail addresses or other personal information of any fan nor will you take any steps to determine the personal Account Information of any fan pursuant to this Agreement. You further agree that you will not violate any provision of Section 4.3 of this Agreement with respect to any communication or correspondence that you may have with respect to any fan. In the event that a fan unsubscribes as a fan on the Website, you agree that you will (a) immediately remove such person from your mailing list and delete any reference to or information regarding such person from any internal or external mailing list that you may have; and (b) not have any further contact with such person by or through this Website or otherwise.
IV. DISCLAIMERS, WARRANTIES, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
12. Disclaimers, Warranties and Limitations on Liability. THE COMPANY’S SERVICES ARE PROVIDED ON AN AS-IS BASIS. THIS SECTIONDESCRIBES THE WARRANTIES GIVEN AND NOT GIVEN BY THE COMPANY AND LIMITS THE DAMAGES AVAILABLE IN THE EVENT YOUBELIEVE THE COMPANY DID NOT PROPERLY PROVIDE THE SERVICES.
12.1. Disclaimers. THE COMPANY IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OR THROUGH THESERVICE 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. THE COMPANY IS NOTRESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES, AND SUCH WEBSITES ARE IN NO WAYINVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY THE 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 THE COMPANY. WHENYOU ACCESS THESE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK. THE COMPANY TAKES NO RESPONSIBILITY FOR THIRD PARTYADVERTISEMENTS WHICH ARE POSTED ON OR THROUGH THE SERVICE OR ITS WEBSITES, NOR DOES IT TAKE ANY RESPONSIBILITY FOR THEGOODS OR SERVICES PROVIDED BY ITS ADVERTISERS. THE COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES OR ITS WEBSITES. THE COMPANY ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZEDACCESS TO, OR ALTERATION OF, ANY USER COMMUNICATION. THE COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICALMALFUNCTION 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 COMPUTERRELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SERVICE OR ITS WEBSITES. UNDER NO CIRCUMSTANCES SHALL THE 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 THROUGHTHE SERVICE OR ITS WEBSITES, OR FROM THE CONDUCT OF ANY USERS OF THE SERVICE OR ITS WEBSITES, WHETHER ONLINE OR OFFLINE.
12.2. No Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITHRESPECT TO THE SERVICE OR INFORMATION COLLECTED FOR OR PROVIDED TO USERS UNDER THIS AGREEMENT. TO THE FULL EXTENTPERMISSIBLE BY APPLICABLE LAW, THE 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 PERMISSIBLEBY APPLICABLE LAW, THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE OR NON-INFRINGEMENT. IN THE EVENT OF THE 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. ANY USE OF THE SERVICES WILL BE AT YOUR OWN RISK. No oral or written information or advice given by the Company or others will create a warranty and neither you nor any third party may rely on any such information or advice.
12.3. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THESERVICE, 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 POSSIBILITYOF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE COMPANY’S AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY YOU FOR YOUR ACCOUNT. You acknowledge that your submission of any information to us is at your own risk. The Company does not assume any liability to you with regard to any loss or liability relating to such information in any way.
12.4. 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 Sections 12.2 and 12.3 may not apply to you.
12.6. U.S. Export Controls. Software available in connection with the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
12.7. Accuracy. Opinions, advice, statements, offers, information or other Content made available through the Services are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not: (a) guarantee the accuracy, completeness or usefulness of any information on the service, or (b) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party other than the Company. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Services, or transmitted to or by any registered Users.
12.8. 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 the 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.
12.9. Beta Releases. The Services or portions of the Services may be labeled “Beta.” All disclaimers and limitations of liability set forth herein apply to all Services or portion of the Services labeled “Beta.” Further, you specifically agree that you understand that any Services or portion of the Services 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 the 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.”
12.10. Indemnity. You agree to indemnify and hold harmless the 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 Services, including any claims arising under or relating to any (a) breach by you of the terms of this Agreement, (b) breach by you of any representation or warranty made by you herein, (c.) failure by you to perform any covenant set forth herein, (d) Content you submit, post, transmit or make available through the Services or its Website, or (e) use of the Services or its Website by you.
12.11. Fee Waivers. You acknowledge and agree that the Company shall not be required to make any payments with respect to Content that you submit to our Website, including, but not limited to, payments to you, third parties, music publishers, mechanical rights’ agents, performance rights societies, persons who contributed to or appear in your Content, your licensors, unions or guilds. You hereby waive any and all fees that may be due and owing to you or any such persons related to the licenses provided to the Company hereunder, the performance of the Services by the Company or any other use or access of your Content by third parties hereto.
13. General Provisions. THESE ARE GENERAL PROVISIONS REGARDING THESE TERMS.
13.1. Rights Reserved. The Company retains all rights and licenses not explicitly granted hereunder.
13.2. 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.
13.3. Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Notwithstanding, you may not assign or transfer any of your rights or obligations under this Agreement unless the Company grants its prior written consent to such transfer or assignment.
13.4. Choice of Law and Forum. These Terms, the relationship between you and the Company, and any dispute involving the Services, the Website or these Terms, shall be governed by (and construed and interpreted in accordance with) the laws of Georgia, 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 of Savannah, County of Chatham, Georgia, 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.
13.5. Severability 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.
13.6. Force Majeure. The Company shall not be liable for any delay in performing the Services or any of its obligations hereunder, when any such delay or failure is occasioned by causes or contingencies beyond the Company’s reasonable control, including but not limited to acts of God, fires, floods, riots, epidemics, embargoes, acts of terrorism, and governmental action of any and all kinds.
13.8. Entire Agreement. This Agreement contains the entire agreement between you and the Company regarding the use of this Services, 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 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.
13.9. 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 Services 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.
13.10. 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 the Company for approaching third parties).
13.11. Counsel. Although we have attempted to outline above the terms on which you may use the Services in straightforward English, please be aware that these terms, if accepted by you, create a binding legal agreement between you and the Company. WE STRONGLY URGE THATBEFORE ACCEPTING THESE TERMS YOU PRINT OUT A COPY AND REVIEW IT WITH YOUR ATTORNEY, MANAGER AND OTHER REPRESENTATIVESAND 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.