ITMUSIC TERMS OF SERVICE
Welcome to ItMusic™, a service provided by ItMusic, LLC ("ItMusic", "we" "our" or " us"), a Delaware limited liability company.
These Terms of Service govern your use of ItMusic.us (the "Website"), our subscription storage services, all of our future mobile and desktop apps (the "Apps"), and all related players, widgets, tools, applications, data, software, APIs (which may also be subject to a separate API Terms of Service) and other services provided by ItMusic currently or in the future (collectively, the "Services").
If you object to or do not agree with any of the provisions in those documents, you may not use the Website, the Apps or any of the Services .
Acceptance of Terms of Service
Changes to Terms of Service
Description of the Platform
The Platform is a hosting service. Registered users of the Platform may store, submit, upload, sell, post audio, text, photos, pictures, graphics, comments, and other content, data or information (collectively, "Content"), which will be stored by ItMusic at the direction of such registered users, and may be shared and distributed by such registered users, and other users of the Platform, using the tools and features provided as part of the Platform and accessible via the Website, Apps and elsewhere. The Platform also enables registered users to interact with one another and to contribute to discussions, and enables any user of the Website, Apps or certain Services (who may or may not be registered users of the Platform) to view, listen to and share Content uploaded and made available by registered users.
We may, from time to time, release new tools and resources on the Website, release new versions of our Apps, or introduce other services and/or features for the Platform. All such new services and features will be subject to these Terms of Service, as well as any additional Terms of Service that we may release for those specific services or features.
Your ItMusic Account
You are not obliged to register to use the Platform. However, access to the Apps and certain Services is only available to registered users.
You are solely responsible for maintaining the confidentiality and security of your username and password. You are responsible for all uses of your username and password, and all activity emanating from your account, whether or not such activity was authorized by you.
If your username or password is lost or stolen, or if you believe that your account has been accessed by any unauthorized third party, you should notify ItMusic in writing and change your password at the earliest possible opportunity.
We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and we may, with or without prior notice, suspend or terminate your account if activities occur on your account which, in our sole discretion, would or might constitute a violation of these Terms of Service, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
You may terminate your account at any time as described in the Termination section below.
Your Use of the Platform
Subject to your strict compliance with these Terms of Service, ItMusic grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to use the Platform in order to view Content uploaded and posted to the Website, to listen to audio Content streamed from the Platform, to share and download audio Content using the features of the Platform where the appropriate functionality has been enabled by the user who uploaded the relevant Content (the "Uploader").
In addition, if you register to use the Platform, and subject to your strict compliance with these Terms of Service, ItMusic grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to:
(a) store (up to 10 GB for free), submit, upload, sell or post Content to the Platform strictly as permitted in accordance with these Terms of Service and any other applicable terms posted on the Website from time to time;
(b) participate in the community areas and communicate with other members of the ItMusic community strictly in accordance with these Terms of Service; and
(c) use the Apps and other Services, if any, provided as part of the Platform strictly in accordance with these Terms of Service and all other terms applicable to those Apps or Services from time to time.
The above licenses are conditional upon your strict compliance with these Terms of Service, including, without limitation, the following:
(d) You must not copy, rip or capture, or attempt to copy, rip or capture, any audio Content from the Platform or any part of the Platform, other than by means of download in circumstances where the relevant Uploader has elected to permit downloads of the relevant item of Content.
(e)You must not adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any Content on or from the Platform, except (i) where such Content is your Content, or (ii) as permitted under these Terms of Service, and within the parameters set by the Uploader (for example, under the terms of a Creative Commons licenses selected by the Uploader).
(f) You must not use any Content (other than your Content) in any way that is designed to create a separate content service or that replicates any part of the Platform offering.
(g) You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
(h) You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent the popularity of your Content on the Platform, or to misrepresent your activity on the Platform, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, add followers to your account, play Content, follow or un-follow other users, send messages, post comments, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Platform.
(i) You must not alter or remove, attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Platform or on any Content appearing on the Platform (other than your Content).
(j) You must not use the Website to transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.
(j) You must not, and must not permit any third party to, copy or adapt the object code of the Website or any of the Apps or Services, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Platform, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to Content other than Your Content.
(k) You must not use the Platform to upload, post, store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
· any Content that is offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in ItMusic's reasonable discretion;
· any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright or trademark rights, rights of privacy or publicity, confidential information or any other right;
· any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise illegal or unlawful in ItMusic's reasonable opinion;
· any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which or might overburden, impair or disrupt the Platform or servers or networks forming part of, or connected to, the Platform, or which does or might restrict or inhibit any other user's use and enjoyment of the Platform; or
· any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
(l) You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
(m) You must not rent, sell or lease access to the Platform, or any Content on the Platform, although this shall not prevent you from including links from Your Content to any legitimate online download store from where any item of your Content may be purchased.
(n) You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
(o) You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any ItMusic employee.
(p) You must not use or attempt to use another person's account, password, or other information, unless you have express permission from that other person.
(q) You must not sell or transfer, or offer to sell or transfer, any ItMusic account to any third party without the prior written approval of ItMusic.
(r) You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
(s) You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by ItMusic or any Uploader; access or attempt to access any data or materials which are not intended for your use; log into, or attempt to log into, a server or account which you are not authorized to access; attempt to scan or test the vulnerability of ItMusic's servers, system or network or attempt to breach ItMusic's data security or authentication procedures; attempt to interfere with the Website or the Services by any means including, without limitation, hacking ItMusic's servers or systems, submitting a virus, overloading, mail-bombing or crashing. Without limitation to any other rights or remedies of ItMusic under these Terms of Service, ItMusic reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and co-operate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.
You agree to comply with the above conditions, and acknowledge and agree that ItMusic has the right, in its sole discretion, to terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms of Service. This may include taking court action and/or reporting offending users to the relevant authorities.
Selling Copies of Your Recordings
By using the Service, you grant to ItMusic the right to sell copies of your Recordings (as defined below) by, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming and storage services.
By clicking the "I Agree" button, you irrevocably grant to ItMusic, throughout the world and during the Term (as defined below), the non-exclusive right:
(i) to sell (at a price to be determined by you), copy, distribute and otherwise exploit the Recordings by all means and media (whether now known or existing in the future) ("Sale") through the Website, its Apps and Services, if any, currently operational or hereafter available;
(ii) to collect 100 % of the income deriving therefrom; and
(iii) to use the name(s), photographs and likenesses, artwork images, biographical and other information provided by you whose performances are embodied on the Recordings in connection with the Recordings and ItMusic's general business.
(c) You acknowledge and agree that ItMusic may disable access to and/or terminate your account and/or remove or disable access to any of your Recordings or any associated materials you provide to ItMusic if ItMusic receives any claim that, if true, would constitute a violation of your representations and warranties hereunder.
(d) You agree that ItMusic may freeze any and all revenues in your account that are received in connection with your Recordings or other materials submitted by you which ItMusic believes, in its good faith discretion, violate these Terms of Service, and such revenues will be forfeited by you if ItMusic determines, in its good faith discretion, they are the result of fraud and/or infringement. You agree that you will not be entitled to reimbursement for any fees paid by you to ItMusic if ItMusic disables access to your account, your Recordings and/or any other materials you provide to ItMusic, or to any revenues forfeited by you as set forth in the preceding sentence.
(e) You agree that ItMusic may terminate your account if you violate these Terms of Service or, in ItMusic's good faith discretion, are believed to be infringing the intellectual property rights of third parties and/or engaging in otherwise fraudulent activity.
Bar Codes and Universal Product Codes
ItMusic will provide you with free bar codes and universal product codes ("UPCs"). These are for your use only and may not be transferred or resold. If transferred or resold, ItMusic will charge you $25.00 per bar code or UPC, plus any revenue made by you from such transfer or resale. ItMusic may deduct such charges from any Net Income owed to you by ItMusic or charge such amounts to any Payment Method you provide to ItMusic.
In order to receive payment from sales of copies of your Recordings, you must create a PayPal account (your "PayPal Account"). ItMusic will pay you directly through your PayPal Account as follows:
(a) 100% of Net Income (as defined below). Net Income will be posted to your PayPal Account in a timely fashion after ItMusic's receipt thereof. Once payment has been credited to your PayPal Account, you will be able to withdraw all or any portion at your discretion. You will be responsible for all bank fees and other charges related to such withdrawals.
(b) "Net Income" means ItMusic's actual receipts from sales less any tax, fee or other charge related to the sale of copies of your Recordings. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.
(c) To the extent that you owe any amounts to ItMusic as a consequence of these Terms of Service or otherwise, ItMusic shall have the right to deduct all or any portion of such amounts from all Net Income otherwise payable to you.
(d) If ItMusic has, in its good faith discretion, reason to suspect that your PayPal Account has been subjected to and/or involved in fraudulent or infringing activities, ItMusic reserves the right to discontinue the posting of Net Income to your PayPal Account until resolution of the suspect activities to the satisfaction of ItMusic is obtained. You agree that such Net Income will be forfeited by you if ItMusic determines, in its good faith discretion, that they are the result of fraud and/or infringement. To the extent that any fraudulent and/or infringing activities are determined to be caused by your or your affiliates' actions or omissions, any costs incurred by ItMusic (including legal fees and expenses) in connection therewith may, in addition to its other remedies, be deducted by ItMusic from any monies otherwise payable to you hereunder.
(e) The Net Income posted to your PayPal Account will be pooled in ItMusic's PayPal account, which may or may not be an interest bearing account, with the Net Income of other ItMusic customers until you withdraw such funds. You agree that you will not receive interest or other earnings on the Net Income that ItMusic places in such pooled account. As further consideration for your use of the Services, you irrevocably transfer and assign to ItMusic any ownership right that you may have in any interest that may accrue on Net Income held in such pooled account. In addition to or instead of earning interest on such pooled account, ItMusic may receive a reduction in fees or expenses charged for banking services by the bank(s) that hold(s) your Net Income.
(f) In connection with your decision to use the ItMusic streaming media player, iPhone application or other so-called widgets or applications (the "Streaming Players") as platforms for users to stream your Recordings, you hereby waive any right to digital artist royalties, performance royalties or any other fees or royalties, statutory or otherwise, that ItMusic may be obligated to pay you or a third party in connection with the use of such Streaming Players. For the avoidance of doubt, to the extent that you utilize a Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that ItMusic is not responsible to make any third party payments in connection with the Recordings and underlying musical compositions which you own and/or control.
(g) To the extent that you elect to use certain Recordings from your ItMusic catalog to distribute free to any parties (via a Streaming Player, directly through your own website or otherwise), you agree that you will be solely responsible for any of the above referenced third party payment obligations resulting from such deliveries. Without limiting any of the foregoing, you expressly agree to either waive music publishing royalties (if you own or control such rights) or pay any necessary royalties due to third party music publishers as a result of any such free distribution.
(h) If ItMusic is presented with a claim of infringement of copyright, trademark, right of publicity or other intellectual property right, or failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, you agree that ItMusic may freeze any and all revenues in your account that are received in connection with the disputed Recordings or other materials submitted by you, and that such revenues will be forfeited by you if ItMusic determines, in its good faith discretion, they are the result of fraud and/or infringement. Furthermore, if in ItMusic's reasonable business judgment it elects to engage an attorney to review and/or respond to such claim, ItMusic shall, in its sole discretion, have the right to deduct from your account or charge any alternate payment method you provide to ItMusic (such as a PayPal account, credit card or debit card) (each a "Payment Method") a minimum of $300 to offset the costs of associated legal fees and expenses.
All audio, text, photos, pictures, graphics, comments and other content, data or information that you upload, store, transmit, submit, exchange or make available to or via the Platform (collectively, "Your Content") is generated, owned and controlled solely by you, and not by ItMusic.
ItMusic does not claim any ownership rights in Your Content and you hereby acknowledge and agree that Your Content remains your sole responsibility.
Without prejudice to the conditions set forth in Your Use of the Platform, you must not upload, store, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any Content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within Your Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Platform) may constitute an infringement of third party rights and is strictly prohibited . Any such infringements may result in the termination of your access to the Platform, and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rights holder.
We may, from time to time, invite or provide you with means to provide feedback regarding the Platform, and in such circumstances, any feedback you provide will be deemed non-confidential and ItMusic shall have the right, but not the obligation, to use such feedback on an unrestricted basis.
Grant of License
By uploading or posting Your Content to the Platform, you initiate an automated process to transcode any audio Content and direct ItMusic to store Your Content on our servers, from where you may control and authorize the use, reproduction, transmission, distribution, public display, public performance, making available and other communication to the public of Your Content on the Platform and elsewhere using the Services. To the extent it is necessary in order for ItMusic to provide you with any of the aforementioned hosting services, to undertake any of the tasks set forth in these Terms of Service, and/or to enable your use of the Platform, you hereby grant such licenses to ItMusic on a limited, worldwide, non-exclusive, royalty-free and fully paid basis.
By uploading Your Content to the Platform, you also grant a limited, worldwide, non-exclusive, royalty-free, fully paid up, license to other users of the Platform, and to operators and users of any other websites, apps and/or platforms to which Your Content has been shared or embedded using the Services (" Linked Services"), to use, copy, repost, transmit or otherwise distribute, publicly display, publicly perform, adapt, prepare derivative works of, compile, make available and otherwise communicate to the public, Your Content utilizing the features of the Platform from time to time, and within the parameters set by you using the Services. You can limit and restrict the availability of certain of Your Content to other users of the Platform, and to users of Linked Services, at any time using the settings on the sound page for each sound you upload, subject to the provisions of the Disclaimer section below. Notwithstanding the foregoing, nothing in these Terms of Service grants any rights to any other user of the Platform with respect to any proprietary name, logo, trademark or service mark uploaded by you as part of Your Content (for example, your profile picture) (collectively, "Marks"), other than the right to reproduce, publicly display, make available and otherwise communicate to the public those Marks, automatically and without alteration, as part of the act of reposting sounds with which you have associated those Marks.
The licenses granted in this section are granted separately with respect to each item of Your Content that you upload to the Platform. Licenses with respect to audio Content, and any images or text within your account, will (subject to the following paragraph of these Terms of Service) terminate automatically when you remove such Content from your account. Licenses with respect to comments or other contributions that you make on the Platform will be perpetual and irrevocable, and will continue notwithstanding any termination of your account.
Removal of audio Content from your account will automatically result in the deletion of the relevant files from ItMusic's systems and servers. However, you hereby acknowledge and agree that once Your Content is distributed to a Linked Service, ItMusic is not obligated to ensure the deletion of Your Content from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Platform or any Linked Service deletes any item of Your Content.
Any Content other than Your Content is the property of the relevant Uploader, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Platform from time to time and within the parameters set by the Uploader on the Platform or with the express written consent of the Uploader. Where you repost another user's Content, or include another user's Content in a set, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this section, all rights in Content are reserved to the relevant Uploader.
Representations and Warranties
You hereby represent and warrant to ItMusic as follows:
(i) Your Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use, and (if and where relevant) to authorize ItMusic to use, Your Content pursuant to these Terms of Service, including, without limitation, the right to upload, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available and otherwise communicate to the public Your Content, and each and every part thereof, on, through or via the Website, all Services and all Linked Services.
(ii) Your Content, the availability thereof on the Platform, and the use thereof as described in these Terms of Service does not and will not infringe or violate the rights of any third party, including, without limitation, any intellectual property rights, performers' rights, rights of privacy or publicity, or rights in confidential information.
(iii) You have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in Your Content in order to include their name, voice, performance and likeness in Your Content and to publish the same on the Platform and via any Linked Services.
(iv) Your Content, including any comments that you may post on the Website, is not and will not be unlawful, offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on grounds of race, gender, religion or sexual orientation.
(v) Your Content does not and will not create any liability on the part of ItMusic, its subsidiaries, affiliates, successors or assigns, or their respective employees, agents, directors, officers or shareholders.
ItMusic reserves the right to remove Your Content, suspend or terminate your access to the Platform and/or pursue all legal remedies if ItMusic believes that any of Your Content breaches any of the foregoing representations or warranties, or otherwise infringes another person's or entity's rights or violates any law, rule or regulation.
Liability for Content
You hereby acknowledge and agree that ItMusic (i) stores Content and other information at the direction, request and with the authorization of its users, (ii) acts merely as a passive conduit and/or host for the uploading, storage and distribution of such Content, and (iii) plays no active role and gives no assistance in the presentation or use of the Content. You are solely responsible for all of Your Content that you upload, post or distribute to, on or through the Platform, and to the extent permissible by law, ItMusic excludes all liability with respect to all Content (including Your Content) and the activities of its users with respect thereto.
You hereby acknowledge and agree that ItMusic cannot and does not review the Content created or uploaded by its users, and neither ItMusic nor its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders has any obligation or liability, and does not undertake or assume any duty, to monitor the Platform for Content that is inappropriate, that does or might infringe any third party rights, or has otherwise been uploaded in breach of these Terms of Service or applicable law.
ItMusic and its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders hereby exclude, to the fullest extent permitted by law, any and all liability which may arise from any Content uploaded to the Platform by users, including, but not limited to, any claims for infringement of intellectual property rights, rights of privacy or publicity rights, any claims relating to publication of defamatory, pornographic, obscene or offensive material, or any claims relating to the completeness, accuracy, currency or reliability of any information provided by users of the Platform. By using the Platform, you irrevocably waive the right to assert any claim with respect to any of the foregoing against ItMusic or any of its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders.
ItMusic Copyright Policy
ItMusic respects the copyrights of others and expects its users to do the same. In compliance with the Digital Millennium Copyright Act of 1998 as embodied in 17 U.S.C. § 512 (the "DMCA"), a copy of which may be found on the United States Copyright Office website at http://www.copyright.gov/title17/92chap5.html#512, ItMusic will respond expeditiously to remove or disable access to material that is claimed to infringe copyrighted material or to be the subject of activity that infringes copyrighted material and was posted online using the ItMusic service.
DMCA Notification of Claimed Infringement
If you are a copyright owner or authorized to act on behalf of the owner of an exclusive right under copyright that is allegedly infringed, please notify ItMusic of the material that is claimed to be infringing or to be the subject of infringing activity and was posted online using the ItMusic service by completing a DMCA Notification of Claimed Infringement (a "Notification") as described below and delivering it to ItMusic's Designated Copyright Agent. It is important to emphasize that you should only submit a Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material is infringing may be liable for damages.
To be effective, the Notification must be a written communication provided to ItMusic's Designated Copyright Agent that includes substantially the following:
(a) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works;
(b) 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 ItMusic to locate the material;
(c) Information reasonably sufficient to permit ItMusic to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
(d) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(e) A statement that the information in the Notification is accurate, and under penalty of perjury, that the complaining party is the copyright owner or authorized to act on behalf of the owner of an exclusive right under copyright that is allegedly infringed; and
(f) The physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right under the copyright that is allegedly infringed.
Once completed, please deliver the Notification to ItMusic's Designated Copyright Agent at:
250 So. 2nd Avenue, Suite 280
Minneapolis, MN 55401
Upon receipt of a valid Notification, ItMusic will respond expeditiously to remove or disable access to the material that is claimed to be infringing or to be the subject of infringing activity.
DMCA Counter Notification
If material you have posted online using the ItMusic service has been removed or disabled in response to a Notification, ItMusic will promptly forward the Notification to you and inform you that it has removed or disabled access to such material. If you own or control the rights to the material you posted online using the ItMusic service and you believe that your material was removed or disabled by mistake or misidentification, you may send ItMusic's Designated Copyright Agent a DMCA Counter Notification (a "Counter Notification") as described below. You should only submit a Counter Notification if you own or control the copyrighted material that is claimed to be infringing because under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be liable for damages.
To be effective, a Counter Notification must be a written communication provided to ItMusic's Designated Copyright Agent that includes substantially the following:
(a) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(b) A statement under the penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(c) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which ItMusic may be found, and that you will accept service of process from the person who provided the Notification (the "Claimant") or an agent of such person; and
(d) Your physical or electronic signature.
Once completed, please deliver the Counter Notification to ItMusic's Designated Copyright Agent at:
250 So. 2nd Avenue, Suite 280
Minneapolis, MN 55401
Upon receipt of a Counter Notification, ItMusic will promptly forward it to the Claimant and inform the Claimant that ItMusic will replace the removed material or cease disabling access to it unless the Claimant notifies ItMusic's Designated Copyright Agent within 10 business days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity with regard to the material posted online by you using the ItMusic service. If ItMusic receives notification that the Claimant has filed such a lawsuit, it will be unable to replace the removed material or cease disabling access to it. If ItMusic does not receive such notification, it may, in its sole discretion, replace the removed material or cease disabling access to it.
Please note that, when ItMusic forwards the Counter Notification to the Claimant, it includes your personal information. By submitting a Counter Notification, you consent to having your information revealed in this way. ItMusic will not forward a Counter Notification to any party other than the Claimant.
The foregoing process applies to copyright only. If you discover any Content that you believe to be in violation of your trademark rights, please report this to us by email at support@ItMusic.us. In all other cases, if you discover Content that infringes any or violates any of your other rights, which you believe is defamatory, pornographic, obscene, racist or otherwise liable to cause widespread offence, or which constitutes impersonation, harassment, spam or otherwise violates these Terms of Service, or applicable law, please report it to us at support@ItMusic.us
Third Party Websites and Services
The Platform may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, including without limitation, Linked Services (hereinafter "External Services").
ItMusic does not have or maintain any control over External Services, and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, ItMusic does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services.
ItMusic disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against ItMusic with respect to the content or operation of any External Services.
Blocking and Removal of Content
Notwithstanding the fact that ItMusic has no legal obligation to monitor the Content on the Platform, ItMusic reserves the right to block, remove or delete any Content at any time, and to limit or restrict access to any Content, for any reason and without liability, including without limitation, if ItMusic has reason to believe that such Content does or might infringe the rights of any third party, has been uploaded or posted in breach of these Terms of Service or applicable law, or is otherwise unacceptable to ItMusic.
Please also note that individual Uploaders have control over the audio Content that they store in their account from time to time, and may remove any or all audio Content or other Content without notice. You have no right of continued access to any particular item of Content and ItMusic shall have no liability if you are unable to access an item of Content due to its removal from the Platform, whether by ItMusic or the relevant Uploader.
ItMusic will suspend or terminate your access to the Platform if ItMusic determines, in its reasonable discretion, that you have repeatedly breached these Terms of Service.
If we receive a valid notification from a third party in accordance with our reporting processes or applicable law that any of Your Content infringes the copyright or other rights of such third party, or if we believe that your behavior is inappropriate, we will send you a written warning to this effect. Any user that receives more than two of these warnings is liable to have their access to the Platform terminated forthwith.
We will also suspend or terminate your account without warning if ordered to do so by a court, and/or in other appropriate circumstances, as determined by ItMusic at its discretion.
THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE WEBSITE, THE APPS AND ALL CONTENT AND SERVICES ACCESSED THROUGH OR VIA THE WEBSITE, THE APPS OR OTHERWISE, ARE PROVIDED "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS".
WHILE ITMUSIC USES REASONABLE ENDEAVORS TO CORRECT ANY ERRORS OR OMISSIONS IN THE PLATFORM AS SOON AS PRACTICABLE ONCE THEY HAVE BEEN BROUGHT TO ITMUSIC'S ATTENTION, ITMUSIC MAKES NO PROMISES, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) REGARDING THE WEBSITE, THE APPS, THE SERVICES OR ANY PART OR PARTS THEREOF, ANY CONTENT, OR ANY LINKED SERVICES OR OTHER EXTERNAL SERVICES. ITMUSIC DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR ANY PART THEREOF, THE CONTENT, OR THE SERVERS ON WHICH THE PLATFORM OPERATES, ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ITMUSIC DOES NOT WARRANT THAT ANY TRANSMISSION OF CONTENT UPLOADED TO THE PLATFORM WILL BE SECURE OR THAT ANY ELEMENTS OF THE PLATFORM DESIGNED TO PREVENT UNAUTHORIZED ACCESS, SHARING OR DOWNLOAD OF CONTENT WILL BE EFFECTIVE IN ANY AND ALL CASES, AND DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION.
ITMUSIC AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SPECIFICALLY DISCLAIM ALL OF THE FOREGOING WARRANTIES AND ANY OTHER WARRANTIES NOT EXPRESSLY SET OUT HEREIN TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES REGARDING NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IF THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES TO THIS AGREEMENT.
Limitation of Liability
IN NO EVENT SHALL ITMUSIC'S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE GREATER OF $1,000 OR THE AMOUNTS (IF ANY) PAID BY YOU TO ITMUSIC DURING THE PREVIOUS 12 MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
ITMUSIC AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SHALL HAVE NO LIABILITY FOR:
1. ANY LOSS OR DAMAGE ARISING FROM:
(a) YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR ANY PART OR PARTS THEREOF, OR TO ACCESS ANY CONTENT OR ANY EXTERNAL SERVICES VIA THE PLATFORM;
(b) ANY CHANGES THAT ITMUSIC MAY MAKE TO THE PLATFORM OR ANY PART THEREOF, OR ANY TEMPORARY OR PERMANENT SUSPENSION OR CESSATION OF ACCESS TO THE PLATFORM OR ANY CONTENT IN OR FROM ANY OR ALL TERRITORIES;
(c) ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTSHOLDERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY'S RIGHTS RELATING TO YOUR CONTENT OR YOUR USE OF THE PLATFORM, OR ANY ACTION TAKEN AS PART OF AN INVESTIGATION BY ITMUSIC OR ANY RELEVANT LAW ENFORCEMENT AUTHORITY REGARDING YOUR USE OF THE PLATFORM;
(d) ANY ERRORS OR OMISSIONS IN THE PLATFORM'S TECHNICAL OPERATION, OR FROM ANY INACCURACY OR DEFECT IN ANY CONTENT OR ANY INFORMATION RELATING TO CONTENT;
(e) YOUR FAILURE TO PROVIDE ITMUSIC WITH ACCURATE OR COMPLETE INFORMATION, OR YOUR FAILURE TO KEEP YOUR USERNAME OR PASSWORD SUITABLY CONFIDENTIAL;
2. ANY LOSS OR DAMAGE TO ANY COMPUTER HARDWARE OR SOFTWARE, ANY LOSS OF DATA (INCLUDING YOUR CONTENT), OR ANY LOSS OR DAMAGE FROM ANY SECURITY BREACH; AND/OR
3. ANY LOSS OF PROFITS OR ANY LOSS YOU SUFFER WHICH IS NOT A FORESEEABLE CONSEQUENCE OF ITMUSIC BREACHING THESE TERMS OF SERVICE. LOSSES ARE FORESEEABLE WHERE THEY COULD BE CONTEMPLATED BY YOU AND ITMUSIC AT THE TIME YOU AGREE TO THESE TERMS OF SERVICE, AND THEREFORE DO NOT INCLUDE ANY INDIRECT LOSSES, SUCH AS LOSS OF OPPORTUNITY.
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM MUST BE NOTIFIED TO ITMUSIC AS SOON AS POSSIBLE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, YOU ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ITMUSIC AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN YOU AND ITMUSIC, AND THAT ITMUSIC'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
NOTHING IN THESE TERMS OF SERVICE LIMITS OR EXCLUDES THE LIABILITY OF ITMUSIC, ITS SUBSIDIARIES, SUCCESSORS, ASSIGNS, OR THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND/OR SHAREHOLDERS FOR: (I) ANY DEATH OR PERSONAL INJURY CAUSED BY ITS OR THEIR NEGLIGENCE, (II) ANY FORM OF FRAUD OR DECEIT, (III) ANY DAMAGES CAUSED WILLFULLY OR BY GROSS NEGLIGENCE, OR (IV) ANY FORM OF LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
You hereby agree to defend and indemnify ItMusic, its successors, assigns, affiliates, agents, directors, officers, employees and shareholders against any and all claims, obligations, damages, losses, expenses and costs, including reasonable attorneys' fees, arising out of or resulting from:
(a) any violation by you of these Terms of Service;
(b) any third party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Your Content on the Platform, and/or your making available thereof to other users of the Platform, and/or the actual use of Your Content by other users of the Platform or Linked Services in accordance with these Terms of Service and the parameters set by you with respect to the distribution and sharing of Your Content; or
(c) any activity related to your account, whether by you or by any other person accessing your account with or without your consent, unless such activity was caused by the act or default of ItMusic.
Data Protection, Privacy and Cookies
ItMusic has an active community of users, many of whom organize and attend face-to-face meetings at venues all over the world ("Meetups"). While ItMusic is generally supportive of Meetups and may provide branded promotional materials to help organizers promote their Meetups, ItMusic does not sponsor, oversee or in any way control such Meetups. You hereby acknowledge and agree that your attendance and participation in any Meetups is entirely at your own risk and ItMusic does not bear any responsibility or liability for the actions of any ItMusic users or any third parties who organize, attend or are otherwise involved in any Meetups.
Competitions and Other Promotions
From time to time, some ItMusic users may promote competitions, promotions, prize draws and other similar opportunities on the Platform (collectively, " Third Party Competitions"). ItMusic is not the sponsor or promoter of any Third Party Competitions, and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any promotion of any Third Party Competitions. If you wish to participate in any of Third Party Competitions, it is your responsibility to read the terms and conditions applicable to the relevant Third Party Competition and to ensure that you understand the rules and any eligibility requirements, and are lawfully able to participate in such Third Party Competitions in your country of residence.
Use of ItMusic Players and Widget
The Platform includes access to customizable players ("Players"), and an embeddable version of the ItMusic waveform player (" Widget") for incorporation into users' own sites, third party sites or social media profiles, whether or not a Linked Service. This functionality is provided to enable Uploaders to put their Content wherever they wish, and to enable other users of the Platform to share and distribute Content within the parameters set by the Uploader.
You may not, without the prior written consent of ItMusic in each instance, use the Players or the Widget in such a way that you aggregate Content from the Platform into a separate destination that replicates substantially the offering of the Website, or comprises a content service of which Content from the Platform forms a material part. Similarly, you may not, without the prior written consent of ItMusic in each instance, use the Players or the Widget to embed Content into any website or other destination dedicated to a particular artist (except where the relevant Content is Your Content and you are the person or are authorized to represent the person to whom the site or destination is dedicated), or to a particular genre. You may not use the Players or Widget in any way that suggests that ItMusic or any artist, audio creator or other third party endorses or supports your website, or your use of the Players or Widget. The foregoing shall apply whether such use is commercial or non-commercial.
ItMusic reserves the right to block your use of the Players and the Widget at any time and for any reason in its sole discretion.
ItMusic reserves the right at any time and for any reason to suspend, discontinue, terminate or cease providing access to the Platform or any part thereof, temporarily or permanently, and whether in its entirety or with respect to individual territories only. In the case of any temporary or permanent suspension, discontinuation, termination or cessation of access, ItMusic shall use its reasonable endeavors to notify registered users of such decision in advance.
You hereby agree that ItMusic and its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders shall not be liable to you or to any third party for any changes or modifications to the Website, Apps and/or any Services that ItMusic may wish to make from time to time, or for any decision to suspend, discontinue or terminate the Website, the Services or any part or parts thereof, or your ability to use or access the same from or within any territory or territories.
ItMusic may change the features of any type of account, may withdraw, or introduce new features, products or types of account at any time and for any reason, and may change the prices charged for any of its accounts from time to time. In the event of any increase in the price or material reduction in the features of any account to which you have subscribed, such change(s) will be communicated to you and will only take effect with respect to any subsequent renewal of your subscription. In all other cases, where ItMusic proposes to make changes to any type of account to which you subscribe, and those changes are material and to your disadvantage, ItMusic will notify you of the proposed changes by sending a message to your ItMusic account and/or an email to the then current email address that we have for your account, at least 6 weeks in advance. You will have no obligation to continue using the Platform following any such notification, but if you do not terminate your account as described in the Termination section below during such 6-week period, your continued use of your account after the end of that 6-week period will constitute your acceptance of the changes to your account.
You may terminate this Agreement at any time by (i) sending notice in writing to ItMusic at 250 So. 2nd Avenue, Suite 280, Minneapolis, MN 55401, USA or via email to support@ItMusic.us confirming such termination, (ii) removing all of Your Content from your account, (iii) deleting your account, and (iv) thereafter ceasing to use the Platform. If you have an account, and terminate this Agreement before the end of your subscription, we are unable to offer any refund for any unexpired period of your subscription.
ItMusic may suspend your access to the Platform and/or terminate this Agreement at any time if (i) you are deemed to be a repeat infringer; (ii) you are in breach of any of the material provision of these Terms of Service, including, without limitation, the provisions of the following sections:Your Use of the Platform,Your Content,Grant of License, and Your Representations and Warranties; (iii) ItMusic elects at its discretion to cease providing access to the Platform in the jurisdiction where you reside or from where you are attempting to access the Platform, or (iv) in other reasonable circumstances as determined by ItMusic at its discretion.
Once your account has been terminated, all Content residing in your account, or pertaining to activity from your account (for example, data relating to the distribution or purchase of your Content), will be irretrievably deleted by ItMusic, except to the extent that ItMusic is obliged or permitted to retain such content, data or information for a certain period of time in accordance with applicable laws and regulations and/or to protect our legitimate business interests. You are advised to save or back-up any material that you have uploaded to your account before terminating your account, as ItMusic assumes no liability for any material that is irretrievably deleted following any termination of your account. ItMusic is not able to provide you with any .csv or other similar file of data relating to activity associated with your account, whether before or after termination or cancellation. This data is provided and is accessible only for viewing via your account page on the Website for as long as your account is active.
If you access the Platform via any of our Apps or via any third party app connected to your account, deleting that app will not delete your account. If you wish to delete your account, you will need to do so from the Account page within your Settings on the Website.
The provisions of these Terms of Service that are intended by their nature to survive the termination or cancellation of this Agreement will survive the termination of this Agreement, including, but not limited to, those sections entitledYour ItMusic Account,Your Content,Grant of License ,Representations and Warranties,Liability for Content,Disclaimer,Limitation of Liability,Indemnification,Assignment to Third Parties,Severability,Entire Agreement, and Applicable Law and Jurisdiction, respectively.
Assignment to Third Parties
ItMusic may assign its rights and (where permissible by law) its obligations under this Agreement, in whole or in part, to any third party at any time without notice, including, without limitation, to any person or entity acquiring all or substantially all of the assets or business of ItMusic. You may not assign this Agreement or the rights and duties hereunder, in whole or in part, to any third party without the prior written consent of ItMusic.
Should one or more provisions of these Terms of Service be found to be unlawful, void or unenforceable, such provision(s) shall be deemed severable and will not affect the validity and/or enforceability of the remaining provisions of these Terms of Service, which will remain in full force and effect.
Third Party Rights
These Terms of Service are not intended to give rights to anyone except you and ItMusic. This does not affect our right to transfer our rights or obligations to a third party as described in the Assignment to Third Parties section.
Applicable Law and Jurisdiction
This Agreement is subject to the laws of the United States, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and excluding the principles of conflict of laws (international private law); and
You hereby agree, and ItMusic agrees, to submit to the exclusive jurisdiction of the courts in Minneapolis, Minnesota, USA for resolution of any dispute, action or proceeding arising in connection with this Agreement.
The foregoing provisions of this Applicable Law and Jurisdiction section do not apply to any claim in which ItMusic seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by ItMusic or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against ItMusic, including with respect to Your Content, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms of Service.
The services hereunder are offered by ItMusic, LLC, a limited liability company organized under the laws of the State of Delaware, with its main place of business at 250 So. 2nd Avenue, Suite 280, Minneapolis, MN 55401 USA. You may contact us by sending correspondence to the foregoing address or by emailing us at support@ItMusic.us. If you are a resident of the State of California, you may have these Terms of Service mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms of Service.