General Terms and Conditions
Revised as of June 26, 2017
THE WEBSITE NEWFANGLEDMUSIC.COM (THE “SITE”) AND RELATED PLATFORMS, PRODUCTS, AND SERVICES AVAILABLE ON OR FROM THE SITE (THE “SERVICES”) ARE OWNED AND OPERATED BY VIRTUAL GRAFFITI, INC. D/B/A NEWFANGLED MUSIC (TOGETHER WITH ITS AFFILIATES, SUCCESSORS, AND ASSIGNS HEREINAFTER REFERRED TO AS “OUR”, “WE,” OR “US”).
THESE TERMS AND CONDITIONS ARE LEGALLY BINDING AGREEMENTS. IF YOU USE THE SITE AND THE SERVICES ACTING AS THE REPRESENTATIVE FOR AN ARTIST, BAND, GROUP, COMPANY, OR ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH INDIVIDUAL OR ENTITY AND YOU GUARANTEE COMPLIANCE BY SUCH INDIVIDUAL OR ENTITY WITH THESE TERMS AND CONDITIONS.
WE RESERVE THE SOLE RIGHT AT ANY TIME TO MODIFY, DISCONTINUE, OR TERMINATE ANY SERVICE OR THE SITE, OR CHANGE, ADD, OR DELETE PORTIONS OF THESE TERMS AND CONDITIONS WITHOUT NOTICE. IT IS YOUR RESPONSIBILITY TO CHECK THE SITE PERIODICALLY FOR CHANGES. YOUR CONTINUED USE OF THE SITE AND SERVICES AFTER ANY CHANGES CONSTITUTES YOUR ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SITE OR SERVICES.
1. USE OF SITE AND SERVICES:
- (a) Age Restriction. The Site and Services are intended for use by persons 18 years of age or older. The Site and Services are not intended for children under the age of 13. Children under the age 18 but at least 13 years of age may use the Site and Services only with the verifiable consent of a parent or legal guardian who has agreed to be bound by these Terms and Conditions. SOME AREAS OF THE SITE MAY CONTAIN MATERIAL THAT IS INAPPROPRIATE FOR MINORS.
- (b) Site Content Ownership. All materials and content on the Site and Services, including User Content (defined in Section 3(a) below), (collectively, the “Site Content”) are the proprietary property of us or our licensors (including other users of the Site), including respective copyrights, logos, slogans, trademarks, and service marks. As between you and us, you shall retain all rights in your User Content subject to the licenses granted in these Terms and Conditions.
- (c) Site and Services Use License. Subject to these Terms and Conditions and only to the extent expressly permitted by the functionality of the Site and Services, you are granted a limited, non-exclusive, revocable, non-assignable, and non-transferable right to use the Site and Services and access and interact with Site Content. Except with respect to your use of certain Services in accordance with their specific terms and conditions that provide for or facilitate commercial activities, you understand that the Site and Site Content is for your personal and non-commercial use only. Except as expressly permitted by these Terms and Conditions, the functionality of the Site, or your own use of your User Content (i) no Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, sold, or otherwise used in any form or by any means, in whole or in part, and (ii) nothing herein should be construed as granting any license or right to use any Site Content, including trademarks, service marks, logos, slogans or taglines of us or third parties, or any software or code relating to the Site or Services.
- (d) Site Downloads and Purchases.
- (i) Certain functionality of the Site may expressly permit you to download or copy Site Content, such as music or other materials files from the Site (“Site Downloads”). Certain Site Downloads are available for free, and certain Site Downloads are only available by purchase (“Priced Downloads”). Applicable prices and payments for Priced Downloads are subject to our Service Fees Payments and Refund Policy in Section 7 below. The total price for a Priced Download will include any applicable sales tax based on your billing address and the sales tax rate in effect at the time you purchase a Priced Download. All sales are final. Prices for Priced Downloads may change at any time, and we do not provide price protection or refunds in the event of a price reduction or promotional offering. If a Priced Download becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Priced Download, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by us. Priced Downloads may be downloaded only once and cannot be replaced if lost for any reason without a new purchase.
- (ii) You agree that:
- A. Site Downloads are licensed to you only for personal, noncommercial use;
- B. the delivery of Site Downloads to you does not transfer to you any commercial or promotional use rights in the Site Downloads;
- C. you may not transfer or license your rights in any Site Download to any other person;
- D. you may not alter, modify, incorporate with other media, or otherwise create a derivative work of any Site Downloads; and
- E. you may not use a Site Download as a phone ringtone or ring-back tone (collectively, the “Site Downloads Usage Rules”). You may copy and store Site Downloads in connection with an unlimited number of devices as reasonably necessary but only in accordance with the foregoing Site Downloads Usage Rules. Any use of a Site Download other than in accordance with the Site Downloads Usage Rules may constitute copyright infringement.
- (e) Abuse and Infringement. You agree that you will not use the Site or Services in any manner that is abusive, fraudulent, or unlawful, that infringes the copyright, trademark, or other intellectual property rights of any person or entity, that is inconsistent with these Terms and Conditions, or that could damage, disable, overburden or impair the Site or Services, in each case as determined in our sole discretion. Without limitation, you agree, represent, and warrant that:
- (i) You will use the Site and Services in compliance with all applicable laws;
- (ii) You will not use the Site or Services to infringe the copyright, trademark, or other intellectual property rights of any person or entity;
- (iii) You will not harvest or collect email addresses or other contact information of other Site users by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- (iv) You will not use automated scripts to collect information from, access, or otherwise interact with the Site;
- (v) You will not upload, post, email, transmit or otherwise make available any content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable;
- (vi) You will not create a false identity, or impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
- (vii) You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- (viii) You will not use “spam,” “blast-faxes,” or recorded telephone messages to market or promote any materials relating to you on the Site or in connection with the Services;
- (ix) You will not use or purchase third party services which are marketed or used to artificially increase your “Likes”, “Fans”, “Followers”, or “Song Plays”, or “Video Plays”. Use of these services, or similar services, will result in the immediate termination of your account.
- (x) You will not upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- (xi) You will not use the Site or Services to solicit, advertise, provide, sell, or offer, any third party sites or services, or similar or competing products or services;
- (xii) You will not solicit Site users to register or sign up with another website, platform, or other service or entity;
- (xiii) You will not use or attempt to use another user's account without authorization from us or create a false identity using the Site or Services;
- (xiv) You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Site or Services or any software, documentation, or data related to the Site or Services;
- (xv) You will not remove any proprietary notices or labels from the Site or Services or modify, translate, or create derivative works based on the Site or Services; and
- (xvi) You will not, and will not authorize or encourage any third party to, directly or indirectly, use any deceptive, fraudulent, or other invalid mean or method, including any automated means, bots, botnets, robots, spiders, scrapers, data mining tools, automated scripts, or the like, or repeated manual clicks, to access your sound recordings submitted via Digital Distribution to digital internet consumer stores to generate plays, public performances, streams, or other uses of, or interactions with, your sound recordings for the purpose of generating invalid or fraudulent sale proceeds or otherwise.
- (f) Terms For Certain Services. These General Terms and Conditions apply to all Services as applicable. Your access and use of certain Services may be subject to additional terms and conditions .
In the event any specific terms and conditions applicable to any particular Service conflict with these General Terms and Conditions, the specific terms and conditions shall apply.
- (a) In order to use certain parts of the Site and Services, you must register as a user and create an account on the Site. As part of the registration process, you will provide a username, password, email address, and other information and materials (the “Registration Information”) for your Site account. You may also be able to register as a user of the Site with certain third-party social networking sites (e.g., Facebook, Twitter, YouTube, etc.) (a “Third-Party Account”), and in connection therewith, you allow us to access, store, and use content or information relating to your Third-Party Account, and any content or information in your Third-Party Account used on the Site or with the Services shall be “Registration Information” hereunder. We may accept or reject your user registration in our sole discretion.
- (b) You alone are responsible for maintaining the security of your Registration Information and for all uses of the Site and Services in the name of your account. Upon registration, you will have a “Dashboard” page on the Site where you can manage your use of the Site and Services (your “Dashboard”).
- (d) You are responsible for maintaining access to the email address associated with your account. We are unable to restore access to your account if you lose access to the email address associated with the account.
- (e) You are responsible for keeping your account active. If a user does not log in to an account for six (6) months or more from the date of the last log in, the account may be considered inactive. Inactive accounts may be permanently removed without notice.
3. CONTENT SUBMITTED BY YOU:
- (a) User Content.
- (i) You are solely responsible for all materials and content that are submitted by you or through your account for posting, publication, display, distribution, performance, or other use on the Site or in connection with any Service, including without limitation, music, sound recordings, musical works, compositions, videos, photographs, pictures, graphics, names, likenesses, images, copyrights, trademarks, service marks, logos, biographical information, chat, messages, files, code, data, metadata, text, software, links, your Registration Information, content from your Third-Party Account, and any other information or materials (“User Content”).
- (ii) We are not responsible for any User Content that may be lost or unrecoverable through your use of the Site or Services, and you are encouraged to archive your User Content regularly and frequently.
- (iii) You must submit User Content to the Site and Services in compliance with our submission specifications. Our submission specifications are available in your Dashboard or otherwise on the Site. We reserve the right to refuse to accept and/or cause the removal of any User Content for any reason and at our sole discretion and without notice to you.
- (iv) As between you and us, and subject to our rights in these Terms and Conditions, you shall retain all rights in the User Content and nothing in these Terms and Conditions shall constitute a transfer to us of ownership of any User Content.
- (v) You hereby acknowledge and agree that we may, at our sole discretion, disclose User Content in order to: (A) comply with law enforcement, court orders, or the legal process; (B) protect the rights and safety of individuals; or (C) settle disputes over intellectual property ownership. You understand and agree that in connection with the rights granted herein, we have the right, but no obligation, to remove, monitor, market, promote, advertise, or otherwise use your User Content.
- (b) Licenses to User Content.
- (i) By submitting User Content to the Site or in connection with any Service, you automatically grant to us a non-exclusive, transferable, royalty free, license throughout the universe, and in any manner and media now known or hereafter developed, to prepare, review, copy, reproduce, convert, host, distribute, transmit, stream, publicly perform, display, modify, adapt, excerpt (in whole or in part), publish, promote, advertise, market, create derivative works from, and otherwise use all or any portion of the User Content, and to grant and authorize sublicenses of the foregoing, in connection with the Site and Services and the functionality thereof; provided, however, we will not sell or otherwise commercially distribute for a fee User Content except in connection with your express use of a Service or program offered by us that provides such functionality. Except as may be specifically provided in connection with any particular Service, we have no obligation to pay you or anyone else any amounts, including record or publishing royalties, performance fees, license fees, or union, guild, or collective bargaining fees, for the distribution, public performance, or other uses of your User Content as authorized in these Terms and Conditions.
- (ii) The foregoing grant of rights includes, without limitation, our right to (but not obligation to):
- A. use User Content, including names, pictures, likenesses, images, voices, performances, biographical materials, and web links to websites that you control, in each case in connection with marketing, advertising, or promoting User Content, you, the Site, the Services, or us;
- B. submit or transmit User Content to third parties in connection with any applicable Services or program offered by us which you elect to use, in any format (e.g., MP3, streaming, or otherwise) in accordance with the functionality of such Service or program;
- C. submit or transmit User Content for review at our election and without notice, provision of feedback, or cost to you; provided, however, that notwithstanding the forgoing, you agree to pay any applicable Service Fees to the extent you affirmatively elect to use the service;
- D. display any and all lyrics associated with a musical composition embodied in User Content in connection with the Site or Services or program offered by us;
- E. edit or modify User Content in our sole discretion in connection with the Site, Services, or program offered by us and without any approval rights by you; and
- F. publicly perform and transmit your sound recordings and musical compositions in connection with the Site, Services, or a program offered by us, including, but not limited to, by interactive and non-interactive streaming on the Site or via a Service. If you have affiliated with a performance rights organization (“PRO”) with respect to your public performance rights, such as BMI, ASCAP, or SESAC, then you may be prohibited from granting the same rights to us, or a grant of public performance rights to us may prevent a PRO from collecting royalties on your behalf. In certain situations a PRO may require that you provide the PRO with notice if you are granting public performance rights to another party. If you have an agreement with a PRO that includes such a provision, you are solely responsible for providing such notice to the PRO. You understand that no fees or payment of any kind whatsoever shall be due to any PRO or music publisher for use of your User Content as authorized in these Terms and Conditions.
- (iii) Certain functionality of the Site and certain Services allow you to make User Content, such as your music, available to be downloaded from our Site, and by using such features, you automatically grant to end users an irrevocable, perpetual, non-exclusive, transferable, royalty free, license throughout the universe to use such Site Downloads but only for personal, noncommercial use and in accordance with the Site Downloads Usage Rules in Section 1(d) above.
- (iv) The grant of rights in this Section 3(b) will survive your removal of User Content from the Site, the termination of your use of the Site or Service, or any other termination of these Terms and Conditions unless we receive written notice of termination of this license from you, at which point this license will expire and we will stop using the specified User Content within thirty (30) days; provided, however, that with respect to Site Downloads, the grant of rights to end users will survive your removal of such User Content from the Site indefinitely.
- (c) Without limitation of the rights granted herein, we and you may enter into additional agreements to confirm the rights granted herein, expand scope of rights granted to us, or otherwise with respect to the User Content, and to the extent such other agreements conflict with these Terms and Conditions, the terms of such other agreements shall control.
- (d) Representations and Warranties. By submitting User Content to the Site or in connection with any Service, you acknowledge, represent, and warrant that:
- (i) you own or control all necessary rights in and to the User Content, and you have the full right and authority to grant the rights, licenses, and permissions in these Terms and Conditions;
- (ii) the exercise of the rights granted by you herein shall not violate any laws or otherwise infringe upon the rights of any person or entity, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful materials;
- (iii) the exercise of the rights granted by you herein shall be without any obligation to make any payment of any nature to you (except as expressly provided in connection with any Service) or any other person or entity;
- (iv) to the extent that you receive payments from us in connection with any Service, you acknowledge and agree that any such payments to you are inclusive of all payments otherwise due to any person or entity; and
- (v) to the extent you do not own any underlying musical compositions, sound recordings, samples, publicity rights, or other materials or content in your User Content, it is your obligation to secure all appropriate permissions, clearances, licenses, or other authorizations and agreements, and, as applicable, to pay directly all third-party fees and royalties as may be required, including, but not limited to, with respect to artists, band members, authors, co-authors, copyright owners and co-owners, publishers, producers, or any other person who performed in the making of your User Content, and in connection with mechanical royalties, digital phonograph delivery royalties, public performance royalties, payments that may be required under any collective bargaining agreements or statutory schemes, or any other royalties, fees, and/or sums payable with respect to your User Content, and at our request you shall provide us with confirmation of such authorizations and payments.
4. DMCA COPYRIGHT NOTICE AND REPEAT INFRINGER POLICY:
- (a) If you are a copyright holder who believes that any of the materials on the Site infringe your work, you should notify us promptly. Instructions regarding the required content of this notice, and a form to provide such notice, is available via our Copyright Policy. Upon our receipt of notice reporting alleged copyright infringement, and which complies with the requirements set forth in the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to remove, or disable access to, the material in accordance with the DMCA.
- (b) Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted in writing to the Designated Agent for this Site. Contact information for the Designated Agent may be found at the U.S. Copyright Office's Directory of Service Provider Agents for Notification of Claims of Infringement, and is provided below:
- Newfangled Music
- Attn: Legal Department – DMCA Agent
- 9979 Muirlands Blvd., Irvine, CA 92618
- (c) Please be advised that we may provide an alleged infringer with any notice of claimed infringement, including notices of claimed infringement submitted by you and any communications related thereto. We may also provide any counter notifications received and communication related thereto, to the provider of the original notice of claimed infringement.
- (d) Without limiting our termination rights in Section 10, if you engage in “repeat infringement” we may terminate your registration and Site account without notice, and you will no longer be permitted access to the Site or the Services. “Repeat infringement” shall be defined as two (2) or more instances, as determined by us in our reasonable discretion, where you have infringed the copyright rights of another person.
- (e) In the event a user's materials are removed due to a DMCA notice and then subsequently restored in accordance with the DMCA, we will treat the underlying DMCA notice as withdrawn.
- (f) We reserve the right to terminate Site accounts that are the subject of fewer than two (2) instances of infringement of the copyright rights of another person in appropriate circumstances, such as when the user has a history of violating or willfully disregarding the Terms and Conditions.
You agree to fully indemnify and hold us and our subsidiaries, affiliates, directors, officers, agents, contractors, partners, affiliates, employees, contractors, co-branders, advertisers, and other partners (collectively, the “Related Parties”) harmless, and upon our request, defend us and/or the Related Parties, from and against any and all losses, liabilities, damages, claims, costs, expenses, or demands (including reasonable attorneys' fees and costs), due to or arising out of (i) your use of the Site or Services; (ii) your violation or breach of any representation, warranties or other terms in these Terms and Conditions; (iii) your violation of any rights of any third party; and (iv) any dispute between you and any other user of the Site or Services. Without limitation, you agree to reimburse us and our Related Parties on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this Section. We shall promptly notify you of any such claim, and you may assume control of the defense of such claim with counsel subject to our reasonable approval, provided that you obtain and post an appropriate bond for our benefit, and we shall have the right in all events to participate in the defense thereof. In accordance with Section 7(c) below, if a claim is made we will have the right to withhold payment of any monies due you in an amount reasonably related to the claim and potential expenses. Your sole remedy as a result of any breach or alleged breach by us of these Terms and Conditions or other applicable terms and conditions or agreements is limited to your ability to discontinue use of the Site and your ability to terminate your participation in any Services in accordance with the terms thereof.
6. LIMITATIONS AND DISCLAIMERS:
THE SITE, THE SERVICES, AND THE CONTENT THEREON ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICES.
Without limiting the foregoing:
- (a) We and the Related Parties are not responsible for any incorrect or inaccurate information in the Site Content. We and the Related Parties are not responsible for the content of, accuracy of, or statements or opinions expressed by third parties in any Site Content, including any User Content or in advertisements or solicitations. We are not responsible for the conduct, whether online or offline, of any user of the Site. Site Content is not investigated, monitored, or checked for accuracy or completeness by us. We do not make editorial decisions related to User Content. Inclusion of any Site Content, including links to other websites, does not imply approval or endorsement of the Site Content by us.
- (b) Your interactions with organizations and/or individuals found on or through the Site or Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You agree that we and the Related Parties shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between you and any third party, you understand and agree that we are under no obligation to become involved.
- (c) You understand the speculative nature of the music industry, and we make no guarantees whatsoever with respect to the marketing, promotion, acceptance, development, or popularity of you, your band, your music, or otherwise in connection with your use of the Site or Services; and we further make no guarantees whatsoever that any materials you create or distribute using our Site or Services, including your music, will achieve any results or be purchased or otherwise used by any third party.
- (d) The Site and the Services may be temporarily unavailable from time to time for maintenance or other reasons. We are not responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Site or the Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any web site or blocking from the destination mail servers, including injury or damage to any person's computer related to or resulting from participating or downloading materials in connection with the Site or the Services. Under no circumstances will we be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Services, the Site, or any Site Content.
- (e) By using the Site and/or Services, you hereby release us and the Related Parties from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to your use of the Site and/or Services. If you are a California resident, you represent that you are familiar with Section 1542 of the California Civil Code and you hereby waive and relinquish any right and benefit to which you may have under Section 1542 to the full extent that you may lawfully do so in connection with the subject matter hereof. Section 1542 states:
- A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
- (f) IN NO EVENT WILL WE AND THE RELATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- (g) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL THE AGGREGATE OF OUR AND THE RELATED PARTIES' LIABILITY TO YOU FOR ANY CAUSE, LOSS, COST, DAMAGE, OR CLAIM WHATSOEVER, INCLUDING ATTORNEYS' FEES AND COSTS AND EXPERT WITNESS FEES AND COSTS, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE LESSER OF: (A) THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES FOR THE PRECEDING THREE (3) MONTHS; AND (B) TWO HUNDRED FIFTY DOLLARS ($250.00 U.S.). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THESE TERMS AND CONDITIONS.
7. PAYMENTS AND REFUND POLICY:
- (a) Service Fees. Certain parts of the Site and Services may be accessed and used without charge. For use of certain Services, you are required to pay applicable fees which may change from time to time subject only to your right to terminate such Services in accordance with the terms thereof. Fees vary by Service. Current fee schedules are available on the Site or in your Dashboard. You are responsible for payment of all applicable fees incurred by your Site account. All fees due from you to us hereunder, including to the extent applicable, monthly subscription fees, annual subscription fees, one-time product purchase fees, recurring fees, annual renewal fees, third-party fees, applicable taxes, charge-back fees, resubmission fees, late payment fees, takedown fees, change request fees, and reinstatement fees, are referred to herein as “Service Fees”.
- (b) Payment of Service Fees. You agree that we may charge all Service Fees to the payment method (e.g., credit card, PayPal account, debit card, etc.) you have provided in your Dashboard. You are responsible for the timely payment of all Service Fees. It is your responsibility to notify us if your payment method has changed by making the appropriate changes to your account settings. If you do not provide a valid payment method, or if your designated payment method is determined by us to be inactive for any reason, we may immediately discontinue providing Services to you. Purchases will appear on your credit or debit card statements as “Newfangled Music” or “Virtual Graffiti”. You agree not to cause your credit or debit card company to reverse or “chargeback” any Service Fees charged in accordance with these Terms and Conditions; and in the event you do so, we may terminate your use of the Site and Services, and you agree to reimburse us for any costs incurred in responding to such chargeback, including, without limitation, our actual costs paid to the credit or debit card company, including chargeback fees, and the value of the time our employees spend on the matter as determined in our discretion in good faith.
- (c) Automatic Renewal. Your subscription to a Service will continue indefinitely until cancelled by you. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing to that Service. You agree that your account will be subject to this automatic renewal feature. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription to a Service, please log in to your Site profile and click on your user administration button, then click on “Settings” in the drop down menu, then select “Services”, and click “Unsubscribe” next to the subscription you wish to cancel. If you cancel your subscription to a Service, you may use your subscription until the end of your then-current subscription term and your subscription will not be renewed thereafter. However, you will not be eligible for a prorated refund of any portion of the Service Fee paid for the then-current subscription period. By subscribing, you authorize us to charge your credit card, debit card or other payment method at such time and again at the beginning of any subsequent renewal subscription period, including. Upon the renewal of your subscription to a Service, if we do not receive payment, you agree that we may either terminate or suspend your subscription and continue to attempt to charge your payment method provider until payment is received (upon receipt of payment, your account will be activated, if it was previously suspended, and for purposes of automatic renewal, your subscription commitment period will begin as of the day payment was originally scheduled to be received). If you do not terminate your subscription and/or if you continue to use the Services, you agree that we are authorized to charge the payment method you designated in your Site account. We may also seek payment directly from you. Your charges may be payable in advance, per usage, or as otherwise described when you initially subscribed to the Service.
- (d) Promotions. Any free trial or other promotion that provides user-level access to the Services must be used within the specified time of the trial. You must cancel your subscription prior to the end of the designated trial period in order to avoid being charged a Service Fee when the free trial automatically converts to a paid Service subscription at the end of the designated free trial period.
- (e) Newfangled Music Credit Account.
- (i) In connection with certain Services for which proceeds may be due and payable to you, we will post such proceeds in U.S. Dollars to an account designated as your account and available for review in your Dashboard (“Newfangled Music Credit Account”). Funds designated in your Newfangled Music Credit Account will be pooled in a bank account with other Service users funds until you withdraw such funds. You will not receive any interest or other earnings on funds posted to your Newfangled Music Credit Account. You acknowledge that we may collect and receive interest or other earnings or incentives from banks that hold proceeds in a pooled account, and you waive and irrevocably transfer and assign to us any rights that you may have therein.
- (ii) In connection with certain Services for which proceeds may be due and payable to your Newfangled Music Credit Account, you will be able to withdraw funds posted to your Newfangled Music Credit Account to a PayPal account designated by you once your Newfangled Music Credit Account balance has a minimum amount of five dollars ($5.00 U.S.) plus any applicable PayPal transaction fees. You are always responsible for paying all applicable transaction fees, bank fees, or other charges related to your withdrawal of your funds. Withdrawals from a Newfangled Music Credit Account may only be made to a PayPal account associated with the authorized user of the Newfangled Music Credit Account. It is your responsibility to ensure that all of your account information is correct and updated as necessary. We will not be responsible for any payments made to the wrong account.
- (iii) In connection with your Newfangled Music Credit Account, you may be required to provide to us with proof of identification and your taxpayer information as required by the IRS, including IRS Form W-9.
- (iv) You agree that we are authorized to deduct all Service Fees or other amounts due to us from any monies held on your behalf in your Newfangled Music Credit Account. With respect to payments posted to your Newfangled Music Credit Account, you shall be solely responsible and liable for, and we shall have no responsibility or liability for, any bad debts, fraudulent purchase activity, disputed payments, and refunds, and in connection therewith, we may deduct amounts from your Newfangled Music Credit Account. You further agree that if we receive any claim or threat or a claim that is related to your use of the Site or Service, or if we have, in our good faith discretion, reason to suspect that you or your account is in violation of these Terms and Conditions, we may block your ability to withdraw funds from your Newfangled Music Credit Account, and such funds or portion thereof, at our election, will be forfeited by you and automatically and irrevocably transferred and assigned to us. If in our reasonable business judgment we elect to engage an attorney to review or respond to any claim or threat of a claim with respect to your use of the Site or Services, we shall, in our sole discretion, have the right to deduct from your Newfangled Music Credit Account or charge your account an additional fee of a minimum of five hundred dollars ($500.00 U.S.) to offset the costs of associated legal fees and expenses. Any deduction(s) pursuant to this Section will not relieve you of any obligation to pay the remainder of any amounts due from you to us.
- (v) If your Newfangled Music Credit Account has a balance of less than five dollars ($5.00 U.S.) for at least three hundred sixty five (365) continuous days, then we may, in our sole discretion, close your Newfangled Music Credit Account and terminate your participation in the related Service(s). If you or we terminate your participation in any related Service(s) and you have less than five dollars ($5.00 U.S.) in your Newfangled Music Credit Account, your Newfangled Music Credit Account balance (of less than five dollars ($5.00 U.S.)) will be paid to us as a termination fee to cover our administrative costs.
- (vi) Any objection relating to funds posted to your Newfangled Music Credit Account or related sales and accounting data, or any claim arising therefrom, must be made in accordance with Section 11 below no later than one (1) year after the date such funds are posted to your Newfangled Music Credit Account, and you hereby waive any longer statute of limitations that may be permitted by law.
- (f) Refunds.
- (i) We may in our discretion provide free trials of certain Services for a limited period of time so that you have an opportunity to “try before you buy.” If you are not satisfied or do not wish to use the Service any longer, please cancel the Service prior to the end of the free trial period or the renewal date, as applicable. We do not offer refunds for our Services once the free trial period has expired and you have elected to continue your use of the product. If you elect to cancel your subscription to a Service, we do not provide a refund for the remainder of the applicable billing period.
You acknowledge and agree that in the course of using certain Services you may become aware of certain otherwise confidential information related to our business and business practices. Except to the extent that such information is otherwise generally available to third parties or is required to be divulged by operation of law, you agree to keep such information confidential.
9. USAGE DATA:
We may collect certain tracking and usage data generated or provided by users who visit or interact with your profile on the Site, or by users of products or other materials distributed in connection with your use of certain Services, including, but not limited to, personally identifiable information (“Usage Data”). We may provide all or part of the Usage Data to you. You agree to comply with all applicable laws with regard to your use of Usage Data. You will not transfer or disclose any Usage Data to any third party. We are not responsible for the accuracy of Usage Data, and we disclaim any and all liability relating thereto.
- (a) You may terminate your use of the Site at any time. You may terminate these Terms and Conditions with respect to any Service provided you have paid all applicable Service Fees by effecting a termination from your Dashboard.
- (b) We may cancel your user registration and terminate your use of the Site or Services at any time with or without cause, in our sole discretion, and with or without notice, including for your failure to make any payment when due or your breach of your representations, warranties, and covenants in these Terms and Conditions; provided, however, that we have no obligation to monitor your use of the Site or Services.
- (c) We may delete any of your User Content, information, or other data from the Site or Services at any time, and we have no obligation to maintain copies of any deleted information.
- (d) Any provisions of these Terms and Conditions that by their nature should continue after termination of your use of the Site or any Services will continue to apply even after the expiration or termination of these Terms and Conditions or your use of the Site or any Services.
11. GOVERNING LAW:
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. Those who use the Site or Services from other jurisdictions do so at their own volition and are responsible for compliance with local laws. Any dispute or claim arising out of, or in connection with, these Terms and Conditions shall be finally settled by binding arbitration in Irvine, California, in accordance with applicable laws and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of California, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. You agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys' fees. The arbitration can resolve only your and/or our individual claims, and the arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated. In the event that the forgoing arbitration provision is held invalid or unenforceable, then any dispute with respect to these Terms and Conditions shall be brought and heard either in the California state courts located in Orange County, California, or the local federal district court for Irvine, Orange County. In such event, you consent to the in personam jurisdiction and venue of such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by facsimile or by first class mail, and shall be deemed effectively given upon receipt.
If any provision of these Terms and Conditions is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of these Terms and Conditions shall continue in full force and effect. Nothing in these Terms and Conditions shall be deemed to confer any third-party rights or benefits. These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Our delay or failure to exercise any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. These Terms and Conditions do not, and shall not be deemed to, constitute a partnership or joint venture between you and us, and neither you nor we, nor your or our respective directors, officers, employees, or agents shall, by virtue of the performance of the obligations under these Terms and Conditions, be deemed to be an agent or employee of the other, and neither you nor we has the authority to bind the other under any contract, agreement, or otherwise.
All notices required by these Terms and Conditions shall be in writing and shall be sent (i) by you via your Dashboard, (ii) by us via your Dashboard or your email address of record; and notice shall be effective on the date it is officially recorded as delivered by return receipt or equivalent.