Soundtrack Your Brand General Terms and Conditions
Effective from March 24, 2016
Thanks for choosing Soundtrack Your Brand (“SYB, “we”, “us”, “our”) as your music service provider. These are our General Terms and Conditions (“GTC”) which set out the terms and conditions pursuant to which we provide access to our Service (as defined below) to you (the “Customer”, “you”). If you are accessing or using the Service in connection with your employment, you hereby represent to us that you are authorized to and hereby do bind your company/employer to the terms and conditions of this GTC, and any references herein to “you” and “your” will refer to both you and your company/employer, as applicable. Before you start using the Service, please take a moment and read through this GTC, as by using or accessing the Service, you agree to be bound by all of the terms and conditions contained herein. This GTC will remain in full force and effect while you use the Service, and does not cover other services, content or materials made available by any other company or third party, unless specifically stated. If you do not agree with any of the terms or conditions contained herein, then you should not use or access our Service. Customer and SYB may be individually referred to herein as a “Party” and collectively as “Parties”.
We hope you will enjoy our Service! Don’t hesitate to get in touch, should you have any questions (see below for contact details).
When we use the term “Order”, we mean an online activation of a subscription or purchase of a product. Such activation or purchase is a legally binding purchase of Products entered into between you or any of your Affiliates (as defined below) and us under the terms set out online when placing an Order or as may have been separately agreed in a Master Agreement. Subject to your instructions, we may assist you in placing Orders.
When we use the term “Master Agreement”, we mean a separately executed document containing special terms and conditions applicable to your Orders.
To the extent there is a conflict between this GTC, a Master Agreement (if entered into), terms communicated upon placing an Order and any of the Supplementary Terms, the following order of precedence shall apply: (i) the Master Agreement, (ii) terms communicated upon placing an Order (iii) this GTC, and (iv) Supplementary Terms. Any special terms set out and agreed in the Master Agreement shall take precedence over other terms of the Master Agreement.
We may offer your Affiliates the opportunity to contract with SYB on the terms agreed between us as set out in a Master Agreement. When we use the term “Affiliate”, we mean your parent companies, subsidiaries, licensees, licensors, franchisees, franchisors, any entity in which you, your parent companies or subsidiaries own an interest, and any other entities which you expressly authorize to have access to the Service. Accordingly, by placing an Order, your Affiliate agrees to be bound by the terms of this Agreement as if it were a party thereto. Notwithstanding anything to the contrary contained in any Agreement, you will be fully liable for the acts and omissions of any such Affiliates and fully responsible for the due and proper performance of all obligations under this Agreement, including prompt and due payment of fees. You agree to indemnify, defend and hold us, our affiliates, Rights Holders (as defined below), and each of our and their respective directors, officers, employees, suppliers, licensors, agents and assigns (“SYB Parties”), harmless from and against any and all claims, causes of action, losses, damages, liabilities, costs and expenses, including attorneys’ fees and costs reasonably incurred, judgments and any amounts paid in any settlement (“Losses”) arising out of or in connection with the acts or omissions of such Affiliates.
Please read all of the documents mentioned above carefully, as they cover important information about the Service provided to you and any charges, taxes, and fees payable by you.
Our Service, Content and Products
Through your use of the Service, you may access digital content (audio, visual, text as well as other content, which we refer to collectively as “Content”) that may be owned by us or licensed or otherwise made available to us by third parties (“Rights Holder(s)” or “Content Provider(s)”). Additional terms may apply to the Content. If you upload, post or create any content (audio, visual, text content, materials and any other content) via the Service (“User Content”), you are responsible for such User Content, including securing and maintaining all rights and clearances relating thereto. When we use the term “Service”, we mean the online streaming service that delivers Content to our business partners and business customers at their premises and commercial locations, including any technology, platform, solution or application program interfaces (“APIs”) included in or a part of such service, whether owned by us, or licensed or otherwise made available to us by Rights Holders. The Service is provided through our proprietary media management system, including the SDK platform, developed by or on behalf of us, for use with our Products. As explained further below, the Service is not Customer specific and is updated from time to time in our discretion, including, for example, in line with our Product roadmap.
To access or use the Service, you will need to register as a user. Upon your registration as a user, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to use and access the Service for commercial non-private use, and this Agreement will apply to you. You may not copy, rent, sell, reproduce, publish, republish, post, broadcast, frame or transmit the Service or Content (or any part of them), or authorize or assist anyone else in doing so other than as otherwise explicitly permitted under the terms of this Agreement.
When we use the term “Products”, we mean our products and services that you or your Affiliates purchase through placement of an Order. Activation and purchase of Products through an Order is done through our online interface. Unless otherwise provided in any Master Agreement, (a) Products and access to Content are provided on a subscription basis, and (b) Products may be added during the term of this Agreement.
By your placement of an Order, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to access the Products through the Service for a certain period of time (“Product Period”) or as a “one-off” or individual purchase (e.g., purchases of Hardware Products). Upon placement of your Order of Products, we will confirm your Order via email.
Due to licensing restrictions or other limitations or restrictions imposed, access to the Service and Content may be limited in scope to certain geographical territories (the “Territory”). Any limitations are identified on our website, the administration interface or is otherwise provided during the Order process or when registering as a user. You may not use the Content and/or the Service outside of the designated Territory. You shall at all times maintain and upon request make available to us an accurate and up to date list of your locations.
The Product Period of each Product purchased on a subscription basis shall be as specified when placing the Order. The Product Period for a subscription commences from the date of your Order and will be automatically renewed for additional periods equal to the Product Period following the expiration of the Product Period (“Renewal Period”), unless terminated by you or us. During the Renewal Period, the same commercial terms will apply. You and SYB may terminate the subscription at any time, and the subscription will then terminate at the end of the then current Product Period or Renewal Period, as applicable.
You may give a third party access to administer your account (such as placement of Orders, choosing music, managing the Service, setting up locations and sound zones, creating user accounts, etc.), however, you will still be legally required to comply with terms and conditions of this Agreement, including the payment of all applicable fees, whether or not such third party acted in accordance with your instructions. You are fully liable for all acts and omissions of any third party that uses or administers the Service for you or on your behalf.
We continuously upgrade the features and functionality of the Service and reserve the right to make upgrades, updates, modifications and changes as we see fit in our sole discretion. You understand that such upgrades or changes to the Service may result in interruption, modification, failure, delay or discontinuation of the Service or any function or feature thereof. As a result, you acknowledge and agree that we assume no liability, responsibility or obligation for any such interruption, modification, failure, delay or discontinuation associated with the Service and you are hereby expressly advised not to rely upon the timeliness or performance of the Service. We will make reasonable efforts to minimise interruptions, failure or delay of the Service and will make reasonable efforts to inform of material changes which affects your use of the Service.
Content is also updated from time to time and is dependent on third party licenses and licensors. The available Content may therefore vary over time. Since we do not have control over the Content offered through the Service, you may encounter Content that, for example, may be regarded as offensive, obscene or objectionable, irrespective of whether the Content is identified as such. We are not responsible for reviewing or evaluating the Content, accuracy, completeness, legality, use of copyright-protected material, decency, quality or other aspects of materials. Use takes place at your own risk and we shall have no liability to you for Content that may be found to be offensive, indecent or objectionable.
You acknowledge that we may contract with third parties to fulfil parts of your Order, e.g. installation services, and you agree to that such third parties may invoice you directly for such services.
Additional terms may apply for your use of any third party applications if such are offered through the Service. You understand and agree that we are not responsible or liable for the behaviour, features, or content of any such third party applications unless and to the extent expressly set forth in this Agreement.
We will operate and update the Service and receive and handle your inquiries relating to your use of or access to the Service, such as technical, billing and payment issues and other related issues (“Customer Support”).
Our Customer Support is available to you as a customer and user of the Service. Our goal is to ensure that you enjoy an outstanding experience while using the Service. If you encounter any technical problems, have questions regarding the Service, you can contact our Customer Support during our hours of operation, which can be found on our website. Customer Support can also be reached by e-mail at [email protected] If you have placed an Order for premium Customer Support, separate terms will apply. Customer Support does not include handling of issues relating to defects, interruptions and other failure caused in your hardware, Internet connectivity, communication or other equipment, for which you are solely liable.
You represent, warrant and covenant that:
- you may not use the Service, in any manner that implies an endorsement, affiliation, cooperation or relationship between you and any artist, band, label or other entity;
- any registration information that you have submitted is true, accurate, complete and is kept updated and you shall be responsible and liable for any access to or use of the Service by your or any person or entity using the Service on your behalf (whether or not such access or use thereof has been authorized by you);
- you are authorized to assume the obligations and grant all permissions and licenses provided in this Agreement and that you have the full right, power and authority to enter into this Agreement and to create a legal, valid and binding obligation on you and/or your employer or company, as applicable, and you entering into this Agreement does not and shall not violate any applicable law, rule or regulation, or require any conditional consent by any person or entity;
- you will comply with all laws, rules and regulations applicable to your use of and access to the Service; and
- you will not access or use the Service, or otherwise stream Content outside of the allowed Territories.
You are responsible for maintaining the strict confidentiality of your registration information and you shall be responsible and liable for any access to or use of the Service by you or any person or entity using your registration information, device or other credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee. It is therefore critical that you do not share your registration information with anyone. You agree to immediately notify SYB of any unauthorized use of your registration information, account or device, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your registration information, (b) update, maintain and control access to your registration information, and (c) cancel your account on the Service.
You are responsible for all hardware, communication networks and other equipment necessary for use of the Service, and the due installation thereof.
We respect the intellectual property rights of others and require that you do the same, including all copyright and related rights, design right, registered designs, patents, trade and service marks, trade dress, database rights, semi-conductor topography rights, know-how, trade secrets and all other intellectual property rights throughout the world for the full term of the rights concerned, whether registered or unregistered (“Intellectual Property Rights”). For example, the following is not permitted: (a) copying, reproducing, “ripping”, recording, or making available any part of the Service or Content, or otherwise using the Service, in breach of what is expressly permitted under this Agreement; (b)reverse-engineering, decompiling, disassembling, modification or creating derivative works based on the Service or any part thereof; (c) circumventing any technology used to protect Content accessible through the Service; (d) circumventing of any territorial restrictions; (e) artificially increasing play count or otherwise manipulating the Service in any way; (f) removing or altering any notices contained on or provided through the Service; or (g) providing your login details to any other person/entity or using any other person’s/entity’s log in details.
The Service may include social and interactive features that offer you the ability to make certain information about you and other content public. Remember that shared or publicly available information or content may be used and re-shared by other users on the Service or across the Internet, so please use the Service carefully and manage your account settings regularly. We have no responsibility or liability for any information, content, material or data made public on the Service.
You must also respect us and other users of the Service. For example, you are not permitted to engage in any activity on the Service, including registering and/or using a username, which is or includes material that (a) is offensive, abusive, defamatory, pornographic or obscene; (b) is illegal, or intended to promote or commit an illegal act of any kind, including violations of Intellectual Property Rights or proprietary rights of us or a third party; (c) is comprised of personal data of third parties, (d) is malicious content, a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or otherwise interfere with a user’s use of or access to the Service; (e) is intended or does harass or bully other users; (f) impersonates or misrepresents your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading; (g) involves transmission of unsolicited mass mailing (“spam”), junk mail, chain letter, or similar; (h) interferes with the Service, tampers with or attempts to probe, scan, or test for vulnerabilities in the Service or our computer systems or network, or breaches any of our security or authentication measures. You agree that we may also reclaim your username for any reason.
We assume no responsibility for removing, or monitoring the Service for, any inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates, or is suspected of violating, this Agreement, including removing any Content or reclaiming your username at any time, and/or reporting you to law enforcement authorities.
Fees and Payment Terms
When you purchase Products, invoicing of the applicable fees will be made as set out online when placing an Order or as separately agreed in any Master Agreement, which also contains the acceptable forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your Order.
Except as otherwise specified herein, in any Master Agreement or online when placing the Order, (i) fees are based on Products purchased per the Order, and not on your use of the Product or Service, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) once Ordered quantities or units of Products cannot be decreased during the relevant Product Period.
Where credit card is used as payment method, you accept that we will debit your credit card automatically when issuing an invoice. Where another payment method is used, we will add a reasonable administrative fee as set out in the Order.
If you have purchased multiple Products, we reserve the right to invoice these collectively. Furthermore, we reserve the right to invoice all of your locations collectively. All prices are exclusive of VAT and other applicable Taxes. We reserve the right to verify your financial status and creditworthiness with a reputable credit rating agency of our choice.
If you are on a billing period of more than one month (e.g. yearly or quarterly) your first purchase will cover the entire billing period. Any additional purchase of subscription products during the billing period will be prorated and charged for the remaining full months of the billing period.
We state the prices of our Products in certain currencies and the currency used varies throughout the Territory. Where credit card payment is used you will be informed of the currency you will be charged in. Where invoice is offered and used as payment method, you are given the opportunity to choose between certain invoice currencies. Where the invoice currency deviates from the currency of the Product ordered, we retain the right to determine applicable exchange rate at the time of invoicing. We use an industry standard way of determining exchange rates, such as www.openexchangerates.org. The invoice will provide information on the exchange rate used.
If you register for a free trial, we may make one or more Products available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Product, (b) the start date of any Product purchased, or (c) termination by us in our sole discretion. Additional terms and conditions relating to the free trial will appear on the trial registration page or will be otherwise provided as part of the free trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, we may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the Order. All Orders are final once you click the “Activate” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If we do not receive payment from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. We reserve the right to change any and all prices for any Products at any time, for any reason. In the event that you choose a payment method other than an Authorized Payment Method, we will add a reasonable administrative fee as set out in the Order.
You acknowledge and agree that we may utilize a third party operational service providers to process your payments and all payments made through these third party operational service providers are subject to their respective terms and conditions of use, and in the event of a conflict between such third party’s terms and conditions and this Agreement, the terms and conditions of the third party service provider shall govern and control. We are not responsible and have no liability whatsoever for the services you obtain through our third party operational service providers or other web sites or web pages.
All payments made by you to us under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any governmental authority, or any political subdivision or taxing authority thereof (such taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called “Taxes”). You shall pay and indemnify SYB from all Taxes and if any Taxes are required to be withheld from any amounts payable to us hereunder, the amounts payable to us shall be increased to the extent necessary to ensure that SYB receives (after payment of all Taxes) the amounts specified in this Agreement. Whenever any Taxes are payable by you, as promptly as possible thereafter, you shall send to us (i) a certified copy of a payment order issued by the bank and received by you showing payment thereof, and (ii) a detailed statement explaining the calculation of the Taxes and the statute or regulations pursuant to which such Taxes were paid. If you fail to pay any Taxes when due to the appropriate taxing authority or if you fail to remit to SYB the required receipts or other required documentary evidence, you shall indemnify SYB for any incremental taxes, interest or penalties that may become payable as a result of any such failure.
If, subject to applicable legislation and/or double taxation treaty, Taxes may be reclaimed by SYB, SYB shall, subject to receiving any and all requested information, certificates and assistance, use reasonable efforts to reclaim or eliminate such Taxes and remit any such successfully reclaimed Taxes to you. We are solely responsible for taxes assessable against us based on our income, property and employees.
You will promptly reimburse us for any and other all taxes, assessment, permits and fees that we may be required to pay in connection with the Agreement or its performance. You acknowledge that contemporaneous documentation (e.g., exemption certificate, etc.) are critical to insure that appropriate tax treatment is afforded and agrees to provide us with the required documentation in a timely manner.
All amounts owed that are not paid when due will be subject to a finance charge of one and one half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, in addition to any costs, fees or expenses incurred by us in connection with our payment reminders and collection activities.
We reserve the right to increase our fees in our sole discretion during the term of this Agreement. We agree to make reasonable efforts to notify you in advance of any increase that applies to your use of the Service or Products. If you do not agree to the price changes made, you may terminate your subscription of the applicable Product in accordance with the termination provisions in this Agreement.
Public Performance and Royalty Payments
SYB is responsible for licenses and permissions from the owners of the musical and/or lyrical compositions (i.e. publishing licenses) and the owners of the sound recordings (i.e. master sound recording use licenses) needed for streaming and reproduction/mechanisation of the Content through the Service.
Public performance fees (due to e.g. SOCAN, ASCAP, BMI etc) are included when you purchase a Product in the US and/or Canada. You are required to pay public performance fees and/or royalties to performance rights organizations (e.g. STIM, SACEM, SABAM, PPL, PRS etc.) (“PROs”) when streaming Content from our Service in markets other than the US and Canada.
From time to time, we may also offer Products that contain Content described as “pre-cleared”, “royalty free”, “PRO free” or similar terms (“Pre-cleared Content”), meaning that music contained in such Content may not generally require payment of any royalty or fees to PROs, provided that you use such Content in accordance with the terms and conditions governing such use, and depending on the Territory, whether you are playing the music in a commercial establishment or your manner of use, among other things. In certain jurisdictions public performance rights, neighboring rights and/or other similar and/or related rights are mandatorily handled by collecting societies and/or similar organizations (“Local Rights Organizations”) under local laws and other applicable regulations. We advise you to contact the applicable PRO and any Local Rights Organizations to inquire whether any fees or royalties are due in connection with your use of Pre-cleared Content. You acknowledge and agree that you will not rely on, and will not be relying on, any statements made by us regarding any obligation you may have with respect to such Pre-cleared Content, including any payment obligations, and we will have no liability to you in connection therewith. Please note that you are at all times responsible for any fees and for making such payments to PROs and any Local Rights Organizations.
You agree to indemnify, defend and hold each of the SYB Parties harmless from and against any Losses arising out of the public performance and any other use of Content, including your failure to secure and maintain any necessary public performance licenses or make payments to Local Rights Organizations.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE, CONTENT, PRODUCTS, HARDWARE PRODUCTS AND ALL INFORMATION, MATERIALS AND OTHER SERVICES AND PRODUCTS PROVIDED BY US UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT THE SERVICE WILL ACHIEVE A PARTICULAR RESULT OR BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. WE HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, USER CONTENT (AS HEREAFTER DEFINED) ASSOCIATED WITH YOUR USE OF THE SERVICE. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICE, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT SYB ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
As part of our Customer satisfaction work we use reasonable efforts to resolve any issues related to the Service and keep the Service operational. However, certain technical difficulties or maintenance may, from time to time, result in interruptions, unavailability or delays. You acknowledge and agree that you are not entitled to any compensation for such interruptions.
You understand and agree that we have no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific Content through the Service unless and to the extent expressly set forth in this Agreement.
You agree that you will use the Service in accordance with the Technical Guidelines, as may be modified by us from time to time, including in a system environment supported by us, in respect of, among other things, the operating system, Internet browser, and other applications and plugins.
In addition, we do not warrant, endorse, guarantee or assume responsibility for any third party applications, third party application content or any other product or service advertised or offered by a third party on or through the Service or any hyperlinked website, or featured in any banner or other advertising. You understand and agree that we are not responsible or liable for any transaction between you and third party providers of third party applications or products or services advertised on or through the Service. As with any order of a product or service through any medium or in any environment, we encourage you to investigate any such product or service and use your judgment. No advice or information, whether oral or in writing, obtained by you from us shall create any representation or warranty from us.
The following terms apply in the event you place an Order for Hardware Products. By “Hardware Products” we mean tangible products or parts thereof that we agree to deliver to you pursuant to an Order, excluding any software that may be contained therein. An example of Hardware Products is our proprietary streaming player.
We will deliver all Hardware Products DAP (Incoterms 2010), your premises or your designated place of delivery. Risk of loss and title to Hardware Products pass to you when delivered at your premises or designated address (the “Delivery Date”). You shall be the importer of record and shall pay all costs related to the import of goods, for example customs charges and import taxes (e.g. import VAT). You are solely responsible for import declaration and for legal compliance in relation with any import of Hardware Products.
Immediately upon receipt of the Products, you shall inspect the Hardware Products and notify us of any deficiencies. SYB warrants that, on the date of delivery through the duration of the Warranty Period (as defined below), the Products will (i) function properly under normal use; (ii) be free from defects in materials or workmanship, subject to the following limitations and exclusions (“Warranty”): You shall exercise a reasonable standard of care with respect to protecting and maintaining each Product against damage, peril and theft, including protection against water, moisture and/or impact damage.
The Warranty will not cover any defects, deficiencies or non-conformities caused by (i) use of the Products with hardware or software that SYB has not specified as suitable; (ii) your failure to operate the Products in accordance with any our instructions or documentation, whether written or oral; (iii) failure to implement any updates, upgrades, and other new releases of software made available; (iv) acts or omissions of persons other than SYB’s or its authorized representatives; (vi) installation or maintenance of Products by someone other than SYB or third party contracted by SYB; or (vii) abuse, use at an unsafe or not suitable site, unusual physical or electrical stress. We do not extend the Warranty. You are specifically not allowed to reverse-engineer, decompile, disassemble, modify or create derivative works based on the Hardware Product or its software or any part thereof. Furthermore, you are not allowed to circumvent any technology used to protect Content accessible through the Hardware Product.
If a Hardware Product materially fails to conform to the limited Warranty set forth above, SYB shall, either (i) repair or replace the nonconforming Product with a comparable product, as determined by us in our discretion, or (ii) in the case of a “one-off” purchase of a Hardware Product, refund the amounts paid for the Product, after deducting a reasonable amount for your use of the Product from Delivery Date, in exchange for return of the nonconforming Product. You hereby transfer to us title and ownership of any parts that we replace at your request. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES AND YOU HEREBY WAIVE ANY OTHER RIGHTS OR REMEDIES YOU MAY HAVE AGAINST SYB WITH RESPECT TO ANY NON-CONFORMING HARDWARE PRODUCTS.
Unless otherwise set forth in a Master Agreement, the Warranty period shall be 12 months, beginning on the Delivery Date (the “Warranty Period”). For Hardware Products that we repair or replace pursuant to the above, the Warranty Period shall be the greater of (a) 90 days from the date of your receipt of the repaired Products or parts, and (b) 12 months from the initial Delivery Date of the nonconforming Product. You shall have no claim under the Warranty, unless and until we receive from you, during the Warranty Period, (i) a written notice describing the Warranty breach in reasonable detail (a “Warranty Claim”), and (ii) remote and physical access to the affected Products, as well as information in sufficient detail to enable us to reproduce and analyze the failure.
If we receive a Warranty Claim within the Warranty Period, we will not charge for any repair, replacement, error identification, or correction of the nonconforming Hardware Product, or for return shipment of any repaired Hardware Product to you, except for any costs that are caused by your relocation of the Product from the destination to which it was originally delivered by us. You agree to prepay freight and insurance charges for the return shipment of the nonconforming Product to SYB. We will reimburse you for such actual and reasonable cost, provided that the Warranty Claim meets the requirements of this Agreement. You agree to follow our then current return material authorization process (available on request). If your Warranty Claim fails to meet any of the requirements set forth above, we reserve the right to charge for our, or our authorized service providers’, out-of-pocket costs incurred, including those relating to error identification or correction efforts, repair, replacement and shipment costs.
Unless explicitly stated in writing, any delivery time provided is an estimate. We have the right to a reasonable extension of time, if the delivery is delayed for reasons not caused by us or beyond our control. We will make reasonable efforts to inform you of any material delays in delivery time caused by us. If delay in delivery is caused by you, a subcontractor assigned by you or due to any conditions within your control, we are entitled to postpone the delivery of the Hardware Product to a reasonable date. In this situation, we are entitled to compensation for all direct costs caused by the delay and to receive interest in accordance with law from the agreed day of delivery until the new day of delivery. If a delay for which we are responsible lasts for more than three (3) months you will, as your sole exclusive remedy in case of such delay, be entitled to cancel the Product(s) ordered which are delayed.
Suspension of Service
In addition to any regulations regarding suspension and termination, we may suspend your access to and use of the Service at any time for any reason, including in the event of your actual or suspected unauthorized use of the Service, non-payment of fees (including public performance fees due to PROs), or non-compliance with this Agreement, Rights Holders’ terms, or other terms as set out herein.
We reserve the right, at any time, to remove or disable access to Content as well as playlist compilations/soundtracks created and/or used by you in the Service, for any or no reason, including such that we determine in our sole discretion, violates this Agreement or any other agreement or rights of any third party. We may take these actions without prior notification to you.
If we suspend or terminate your access to or use of the Service, you agree that we shall have no liability or responsibility to you, that you will pay all fees, and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
Terms and Conditions Relating to Rights Holders
You acknowledge and agree that portions of the Service, including Content offered on or through the Service, may be owned, controlled, licensed or otherwise made available by or on behalf of Rights Holders, and your use of or access to the Service is subject to your compliance with the terms, conditions and restrictions imposed by such Rights Holders. In consideration of your use of or access to the Service and Content, you represent, warrant and covenant that:
- you will only use the Service to provide foreground or background media (media, messaging and/or video) at your location;
- you will not amplify, transmit or retransmit the broadcast of Content so as to be audible or visible outside of your premises (beyond ordinary patio or other outdoor speaker usage), or transmit Content outside of your premises;
- you will not use Content in conjunction with any advertising, commercial message, entertainment or other public event at any location for which you or any other person receives consideration of any kind (including a physical activity event or entertainment at your location for which an admission fee is charged);
- you will not transmit, retransmit, alter, record or reproduce (or permit the transmission, retransmission, alteration, recording or reproduction of) any Content other than as expressly permitted herein;
- your location will be properly licensed in the jurisdiction where it is located in order to play or otherwise transmit the Content, and you will be solely responsible for obtaining and timely paying for all music licenses and permissions required in your jurisdiction for the public performance of any Content, including payment of fees directly to PROs and/or Local Rights Organizations.
Accordingly, the authorisations specifically exclude any use of the Content as an accompaniment to musicians, singers, dancers, any other entertainers actually present and performing.
You acknowledge and agree that any Content owned or controlled by Rights Holders shall be deemed the copyrighted works of such Rights Holders, with all right, title, and interest in and to such works, including any programming and compilations provided on or through the Service, vesting exclusively in the applicable Rights Holders. Any Rights Holder may change the functionality of certain aspects of the Service at any time, without notice to you or us. You acknowledge and agree that we are entitled to provide and that Rights Holders are permitted to receive, record, report and monitor usage of Content for purposes of reporting and managing licensing activity as well as compliance, directly or through PROs.
Use of Marks
The terms for using our trademarks, service marks trade names, logos and brands are set out in our Terms and Conditions for Marketing and Branding, available in the legal section of our website (currently available at www.soundtrackyourbrand.com/legal). For use of third party marks (such as Rights Holders’ marks) additional terms may apply. You acknowledge and agree that you will comply with any applicable terms at all times. You grant us a non-exclusive, wordwide, royalty free right to display your company’s official trademark as well as corporate and/or trade name on our Website for the sole purpose of listing customers of SYB. You may at any time, through contacting us, revoke such right to continue displaying such and we will without undue delay remove the trademark, corporate and/or trade name from the site.
You further undertake not to:
- use any trademark or trade name in your business which is identical to or similar to any of our or third parties’ (including Rights Holders’) trademark, trade name or domain name, or derivative thereof, in a manner which is likely to cause deception or confusion, whether during or after the Term, in any country throughout the world;
- use, register or seek to register any trademark, trade name or domain name which is identical or similar to any of our or any third parties’ (including Rights Holders’) trademarks, trade names or domain name, or derivative thereof, whether alone or together with any other mark, name, word, logo or symbol, either during or after the Term, in any country throughout the world; and
- use, challenge, register or seek to register any of our trademarks or trade names, or the trademarks or trade names of third parties (including Rights Holders), or derivative thereof, as part of any business, company or trade name or as a domain name.
Intellectual Property Rights
As between us, we shall remain the exclusive owner of all Intellectual Property Rights in the Service (including the underlying technology, software and content), Content and Products, including Hardware Products. You agree that you shall not remove any legends or statements, including any copyright notice and trademark information, contained in the Service, or any materials provided therewith, regarding our and our licensors’ proprietary rights.
In connection with all User Content, you grant to us the unrestricted, worldwide, non-exclusive, irrevocable, perpetual, fully paid-up and royalty-free right and license, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Service and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sublicense and authorize others to exercise any of the rights granted hereunder to us, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to us shall commence immediately upon submission of your User Content and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Service as a registered user or not.
We do not acquire any title or ownership rights in the User Content that you submit and/or make available. You represent, warrant and covenant that (a) you own the User Content posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, emailing, displaying, transmission and/or making available of User Content does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Content.
Any and all information related to our business and activities and that of our affiliates (including the rights and licenses granted pursuant to this Agreement), which may be obtained by you from any source, or may be developed as a result of this Agreement, and other non-public information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to us, which has been disclosed or may be disclosed or which you may otherwise become aware of in connection with our interactions, shall be kept strictly confidential and not be used for any other purpose than the performance or enforcement of this Agreement. You hereby agree not disclose any such information to any third party without our prior written consent. This obligation of confidentiality does not apply when disclosure is required by law, regulation or a governmental decision to disclose information.
Term and Termination
The Agreement commences when (i) you have executed or submitted an Order, or (ii) you have received log in details to the Service, whichever occur first. The Agreement will remain in full force and effect for as long as you have access to the Service, unless terminated prior to such date in accordance with the terms hereof. Termination of a specific ordered Product will not affect the term of this Agreement, nor the Product Periods of other Products not specifically terminated.
We may terminate your use of or access to the Service at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.
Upon the termination of this Agreement for any reason:
- any sum owing or due to us shall be immediately payable; and
- your access rights to the Service and other rights hereunder shall terminate.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR ANY OF THE SYB PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OR LOSSES OF ANY KIND IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE SERVICE, CONTENT OR ANY PRODUCT, INCLUDING ANY HARDWARE PRODUCT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR OPPORTUNITY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES.
IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF WARRANTIES STATED HEREIN OR THE LIMITATION OF LIABILITY STATED IN THE PRECEDING PARAGRAPH, THEN YOU EXPRESSLY AGREE THAT IN NO EVENT WILL OUR LIABILITY FOR ANY CLAIM OR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THAT LOSS OR DAMAGES AROSE.
The limitations set out above do not apply if the loss or damage is due to our gross negligence or willful misconduct.
You are solely responsible and liable for your conduct and your data related to the Service. You agree to indemnify, defend and hold us and each of the SYB Parties harmless from and against all Losses, arising out of or in connection with (i) a violation or breach of this Agreement by you, (ii) any acts or omissions related to access or use of the Service and/or your account (including to negligent or wrongful conduct) by you or any other person accessing or using your account and/or files, or (iii) our authorized use of Content and User Content provided by you or obtained by us as authorized by you under this Agreement.
SYB will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the Service infringes or misappropriates such third party’s intellectual property rights (a “Claim”) and will indemnify you from any damages, reasonable attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim, provided you:
(a) promptly give us written notice of the Claim,
(b) give us sole control of the defense and settlement of the Claim (except that we may not settle any Claim unless it unconditionally releases you of all liability), and
(c) give us all reasonable assistance, at our expense.
If we receive information about an infringement or misappropriation claim related to the Service, we may in our discretion and at no cost to you (i) modify the Service so that it is no longer claimed to infringe or misappropriate, (ii) obtain a license for your continued use of the Service in accordance with this Agreement, or (iii) terminate your Products/subscriptions for the Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the Product Period of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim arises from Content or your use of the Service in violation of this Agreement.
Neither Party shall be liable to the other Party for any delay or default in performance of its undertakings of obligations under this Agreement if such delay or default is caused by force majeure, including wars, insurrections, fires, passing of laws or any governmental order, regulation or ruling, or any other act(s) beyond the reasonable control, and neither Party shall have the right to terminate this Agreement unless such delay or default in performance is caused by force majeure for a period of three (3) weeks. During such force majeure event, the affected Party will use all reasonable efforts to avoid, reduce or eliminate the force majeure event’s prevention, restriction or delay of the performance of its obligations under this Agreement. A force majeure event does not excuse either Party’s obligation to make any payment under this Agreement.
Any notice or other communication to be given or served under or in connection with this Agreement will be sent either by notices in the Service, published on our website or sent by e-mail to your stated email address.
The provisions on Fees and Payment Terms, Public Performance and Royalty, No Warranty, Personal Data, Hardware, Terms and Conditions Relating To Rightsholders, Use of Marks, IP, Confidentiality, Limitation of Liability, Indemnity, Miscellaneous and Applicable Law and Dispute Resolution survive cancellation, expiration or termination of this Agreement. Further, all other provisions of this Agreement that can be reasonably interpreted as surviving the cancellation, expiration or termination of this Agreement shall survive.
We reserve the right to make changes to the Service, this GTC, the Supplementary Terms and all other documents that are part of this Agreement in our discretion. By continuing to use the Service after such changes are made, you accept the changes. If you do not agree to the changes made, you may terminate your use of the Service and/or Products in accordance with the applicable termination provisions. We will inform you by email or in the Service at our discretion of major changes to these terms.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause of action arose).
The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive.
The failure of us to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by us without restriction, notice or other obligation to you, in whole or in part.
Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use any Service, Content or Product in a EU or U.S. embargoed country (including North Korea, Sudan, Syria or Crimea) or in violation of any EU, U.S. or other territories’ export law or regulation.
Applicable Law and Dispute Resolution
This Agreement and any dispute or claim (whether contractual or otherwise) arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with Swedish substantive law, unless otherwise agreed in a Master Agreement or upon placing an Order.
Unless otherwise agreed in a Master Agreement or upon placement of an Order, any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules of the SCC shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English unless the Parties agree otherwise.
These GTC were issued by Soundtrack your brand Sweden AB, Birger Jarlsgatan 43, Stockholm, Sweden. © Copyright 2016, Soundtrack Your Brand™.