NSM Digital Online Music Subscription
Terms and Conditions of Use
1.
DESCRIPTION OF SERVICE; ACCEPTANCE OF TERMS; MODIFICATION.
NSM Music Inc. (“Company”) provides digital online jukeboxes (“Jukeboxes”) and related
subscription services, through which Jukebox licensees or owners (“you”) and their patrons (
“Users”) can access, stream and publicly play music and videos from Company’s library (the
“Music Library,” and such activities collectively, the “Service”). Access to the Service through
Jukeboxes will be subject to subscription payments, as further described below. This Terms and
Conditions of Use Agreement (“Agreement”) sets out the legally binding terms between you and
Company. Your use of the Jukebox and Service, and all related activities, constitutes your
acceptance of this Agreement, as may be amended from time to time. If Company makes a
material change or amendment to the Agreement, it will notify you by posting a notice on
Company’s website, which amendment will be effective automatically upon the posting of such
notice. IF ANY OF THESE TERMS AND CONDITIONS OF USE OR ANY FUTURE
CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE JUKEBOX OR SERVICE.
You will use the Service in compliance with any applicable laws, rules and regulations.
Company may change, suspend or discontinue any aspect of the Service at any time. In addition,
the Music Library is constantly being updated (including by third party licensors) and Company
makes no representation or guarantee that any particular song will be available (or will continue
to be available) any particular time you access the Service. Company may also impose limits on
certain features and services or restrict your access to parts or all of the Jukebox or Service
without notice or liability to you.
2.
SECURITY. Company reserves the right, in its sole discretion, to disable or terminate
your use of the Jukebox and Service, if Company learns, or if Company has reasonable grounds
to suspect, that you have provided Company with false, infringing or misleading information, or
information not otherwise permitted in accordance with this Agreement, or if you or someone
else uses your Jukebox to engage in activity that violates this Agreement or is otherwise
improper or illegal. Company is not responsible and will not be liable for any loss or damage as
a result of the unauthorized use of the Jukebox or Service by you with or without your
knowledge or otherwise arising from your failure to comply with this Section 2.
3.
LICENSE; SERVICE ACCESS. Company grants you a non-exclusive, nontransferable, non-assignable, limited license to access and make use of the Jukebox and Service,
subject to all of the terms and conditions hereof, and not for redistribution of any kind (the
“License”). You agree not to, and will not permit any User to, download, modify or make any
use of any Company technology or content without express prior written consent of Company
(including the terms of this Agreement). This License does not include any resale of the Service,
any Jukebox, or their contents, other than as explicitly authorized by Company. The Service and
the Jukebox, any content thereon or any portion thereof may not be reproduced, duplicated,
copied, published, sold, resold, visited, or otherwise exploited for any purpose without express
prior written consent of Company. You agree not to, and will not permit any User to: (i) remove
or destroy any part of the Jukebox; (ii) use the Jukebox for any purpose other than in connection
with the Service; (iii) remove or alter, or cause to be removed or altered, any copyright,
trademark, service mark, or any other proprietary notice or legend appearing on the Jukebox; (iv)
modify the Jukebox in any way; (v) create any derivative works based on the Service or Jukebox
or any content made available through the Service or Jukebox; (vi) reverse engineer or
decompile any features or components of the Service or the Jukebox; (vii) defeat or overcome
any encryption technology or security measures with respect to the Service or Jukebox and/or
data transmitted, processed or stored thereon; or (viii) interfere with or disrupt the Service, the
Jukebox or servers or networks connected to or operated with the Service or Jukebox. This
License terminates automatically upon any unauthorized use. Company reserves the right, in its
sole discretion and without notice to you, to suspend or terminate your use of the Service at any
time for any reason with any conditions. Company may in the future update the Service or
Jukebox to change the material, content and/or features thereof at any time (an “Update”).
Company may suspend access to the Service or Jukebox’s online capabilities or withdraw or
temporarily disable the Service’s availability for use (either in whole or in part) in connection
with an Update. Company shall not be liable to you in any way as a result of any temporary
suspension of the Jukebox or Service arising from or in connection with an Update.
Furthermore, Company is under no obligation to undergo an Update of the Jukebox or Service to
the extent any material, content and/or features contained therein or related thereto is out of date.
4.
TRANSACTIONS AND PAYMENT. You agree to provide your credit card or other
acceptable payment information to Company (“Payment Method”), and you represent that you
are the owner or authorized user of such Payment Method. You agree to provide current,
complete, and accurate billing information in connection with your Payment Method. You agree
that Company may charge your Payment Method for all amounts associated with subscription to
the Service through the Jukebox (including any taxes and late fees, as applicable). Failure to
comply with this provision may, at Company’s option, result in immediate suspension or
termination of your right to use the Service. In addition to the fees for your use of the Service,
you are also responsible for all fees associated with accessing and connecting to the Jukebox,
including, without limitation, all telephone and internet access lines/networks (including longdistance charges, when applicable), telephone and computer equipment and any other data and/or
service fees. Prices quoted are generally inclusive of any applicable taxes, including but not
limited to state sales taxes for which you will be added to your bill if and as applicable.
Company reserves the right to change this policy at any time.
5.
INTERNATIONAL. You agree to not use or export any part of the Jukebox or Service
in violation of content restrictions and applicable regulations. You are responsible for adhering to
all relevant local and national laws wherever you are located.
6.
INTELLECTUAL PROPERTY. You acknowledge and agree that Company and/or its
content licensors and other partners retain all right, title and interest in and to (i) the Service; (ii)
all software, content, and data provided on or through the Jukebox or Service (including, without
limitation, designs, names, logos, user interfaces, textual material, sound recordings, musical
compositions, audiovisual works, stills, lyrics and the compilation of all content and materials,
and the business process, procedures, methods and techniques used; and (iii) all associated patent
rights, copyright rights, trademark rights, trade secret rights and other intellectual property and
proprietary rights recognized anywhere in the world (“Service IP”). You agree not to use any
Service IP in any way other than within the terms of the License granted herein. Company
reserves all ownership or other rights in the Jukebox and Service not specifically licensed under
this Agreement.
7.
CONDUCT. You agree to abide by the terms of this Agreement and any other rules
made available to you by Company. You agree not to, and will not permit any User to, use the
Jukebox or Service to: (i) interfere with, manipulate, or take any actions that may undermine the
integrity of any system used to provide the Service; (ii) interfere with or disrupt servers or
networks connected to the Jukebox; (iii) disobey any requirements, procedures, policies or
regulations of networks connected to the Jukebox; (iv) collect or store personal data about Users;
(v) harass, abuse, or harm another person, or (vi) contact, advertise to, solicit, or sell to any User,
other than as specifically provided herein, without their prior explicit consent. Without limiting
other remedies, Company may immediately warn others of your actions, issue a warning,
temporarily suspend, indefinitely suspend or terminate your subscription, freeze your
transactions and refuse to provide Service to you if: (i) you breach, or Company has reason to
believe that you have breached, this Agreement or any document incorporated herein by
reference; (ii) Company is unable to verify or authenticate any information you provide to
Company; or (iii) Company believes that your actions may cause financial loss, legal liability or
other harm to you, Company or any Users.
8.
TERMINATION. Company may terminate this Agreement at any time for any reason.
Company, in its sole discretion and without notice or liability to you, may terminate or suspend
your use of, or access to the Service at any time if Company believes in good faith that you have
violated or acted inconsistently with any provision of this Agreement or any applicable law or
that you have engaged in conduct that Company reasonably determines to be inappropriate or
unacceptable. Use of the Jukebox or Service for illegal, fraudulent or abusive purposes may be
referred to law enforcement authorities without notice. Company reserves the right to terminate
your access to the Service if you file any claim against Company or a claim that involves the
Jukebox or the Service. You have the right to cancel your or subscription to the Service at any
time (provided that you understand that Company will not refund any amounts already paid by
you therefor). If you do not agree to the terms in this Agreement, your sole remedy is to not use
the Service.
To cancel your subscription to the Service, please send an email to
info@nsmmusic.com. All provisions hereof which by their nature should survive, shall continue
in full force and effect upon any termination of this Agreement.
9.
REPRESENTATIONS & WARRANTIES. You represent and warrant that you shall
not act in any manner that conflicts or interferes with any existing commitment or obligation of
yours, and that no agreement previously entered into by you will interfere with your performance
of your obligations under this Agreement. You represent and warrant that your use of the
Jukebox and Service shall be in compliance with any applicable laws, rules and regulations of
any governmental authority.
10.
DISCLAIMERS. YOUR USE OF THE JUKEBOX, SERVICE AND ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE JUKEBOX OR SERVICE IS AT YOUR SOLE RISK.
THE JUKEBOX, THE SERVICE AND ANY PRODUCTS, SERVICES, INFORMATION, OR
OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE JUKEBOX
OR SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE
JUKEBOX, SERVICE AND ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER
MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE JUKEBOX OR
SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE JUKEBOX AND SERVICE
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS
THAT MAY BE OBTAINED FROM THE USE OF THE JUKEBOX, SERVICE AND ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE JUKEBOX OR SERVICE WILL BE ACCURATE OR
RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR
OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE JUKEBOX
OR SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE
SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM
THE JUKEBOX OR SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY
STATED IN THIS AGREEMENT.
Operation of the Jukebox and Service may be interfered with by numerous factors outside of
Company’s control including, but not limited to, telecommunications and/or wireless network
service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized
intervention, fraud, technical failures, and server, equipment or software defects. Company is
not responsible and will have no liability for any failures of the internet or any data or
telecommunications equipment, system or network used in connection with the Jukebox or
Service. Company is also not responsible for any content transmitted through the Jukebox or
Service, including from any third party. You agree and acknowledge that certain sound
recordings in the Music Library may contain explicit lyrics or content. Company will have no
liability to you for any explicit content that may be made available in connection with the
Jukebox or Service that you or a User might find to be offensive. You acknowledge that the
entire risk arising out of the use, inability to use or performance of the Jukebox or Service
remains with you to the maximum extent permissible under law.
11.
INDEMNIFICATION, LIMITED LIABILITY, WAIVER. You hereby agree to
indemnify and hold harmless, and upon Company’s request, defend, Company and its directors,
officers, employees, affiliates, content partners, vendors, third party licensors, distributors,
advertisers, and other contracting parties, together with their respective director, officers,
employees, successors, assigns, consultants and other agents, from and against any and all losses,
liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out
of or in connection with any claim, action, or proceeding brought by a third party based on: (i)
your use of the Jukebox and Service; (iii) a User’s use of the Jukebox or Service; (ii) any breach
of any representation, warranty, covenant or obligation of yours under this Agreement; (iv) your
collection or submission of any information; (v) your violation of any applicable law or
regulation; or (vi) your violation of any third party right, including, but not limited to, any
intellectual property right. Company shall promptly notify you of any such claim, and you shall
assume control of the defense of such claim upon Company’s request. Company shall have the
right, at its expense, to participate in the defense thereof under your direction.
EXCEPT PURSUANT TO YOUR INDEMNITY OBLIGATIONS, AND EXCEPT FOR A
BREACH OF YOUR REPRESENTATIONS AND WARRANTIES UNDER THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES,
INCLUDING LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF
THEIR POSSIBILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE
WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL
TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY
PURSUANT TO THIS AGREEMENT DURING THE TERM OF YOUR USE OF THE
JUKEBOX AND SERVICE. YOU AND COMPANY AGREE THAT ANY PROCEEDINGS
TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN
INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO
HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A
COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY
PROCEEDING IN WHICH YOU OR COMPANY ACTS OR PROPOSES TO ACT IN A
REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO
PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER
PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND
ALL PARTIES TO ANY SUCH PROCEEDING.
12.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS PROCEDURE.
Company respects the intellectual property rights of others and asks that you and Users do the
same. If you believe a User of the Jukebox or Service is infringing your or any third party’s
copyright or otherwise violating intellectual property rights, please provide notification of such
violation containing the following information (“Infringement Notice”) to Company’s designated
copyright agent at info@nsmmusic.com, which Infringement Notice must include: (1) an
electronic or physical signature of the person authorized to act on behalf of the owner of the
copyright or other intellectual property interest; (2) a description of the copyrighted work or
other intellectual property that you claim has been infringed; (3) a description of where the
material that you claim is infringing is located on the Service; (4) your address, telephone
number, and email address; (5) a statement by you that you have a good faith belief that the
disputed use is not authorized by the copyright owner, its agent, or the law; and (6) a statement
by you, made under penalty of perjury, that the above information in your Infringement Notice is
accurate and that you are the copyright or intellectual property owner or authorized to act on the
copyright or intellectual property owner's behalf. This contact information is only for suspected
copyright infringement. Contact information for other matters is provided elsewhere in this
Agreement. Company will remove any content that infringes upon the copyright of any person
under the laws of the United States upon receipt of such a statement (or any statement in
conformance with 17 U.S.C. § 512(c)(3)). Company reserves the right to terminate the Service
for those who repeatedly infringe on the copyright of others. United States law imposes
substantial penalties for falsely submitting a notice of copyright infringement.
13.
GOVERNING LAW. This Agreement and the relationship between you and Company
shall be governed by and construed under the internal law of the State of New York without
regard to its conflict of law provisions. All disputes arising out of or related to this Agreement or
your use of the Jukebox or Service shall be subject to the exclusive jurisdiction of the state and
federal courts located in New York County, New York and you agree to submit to the personal
jurisdiction and venue of such courts; provided, that Company reserves the right to bring
proceedings against you for breach of this Agreement in any other relevant jurisdiction.
14.
NOTICE. Except as explicitly stated otherwise, any notices to Company shall be sent by
certified mail, return receipt requested, to info@nsmmusic.com, including any questions you
may have about the terms and conditions of use set forth in this Agreement.
15.
MISCELLANEOUS. This Agreement and any additional rules incorporated by
reference herein constitute the entire agreement between you and Company and govern your use
of the Jukebox and Service, superseding any prior agreements between you and Company. The
failure of Company to exercise or enforce any right or provision of this Agreement shall not
constitute a waiver of such right or provision. If any provision of this Agreement is found by a
court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties’ intentions as reflected in the provision, and the other
provisions of this Agreement remain in full force and effect. You agree that regardless of any
statute or law to the contrary, any claim or cause of action arising out of or related to use of the
Jukebox, Service or this Agreement must be filed within one (1) year after such claim or cause of
action arose or be forever barred. Company may assign this Agreement, in whole or in part, at
any time without notice to you. You may not assign this Agreement or transfer any rights to use
the Jukebox or Service without the prior written consent of Company.
© 2015 NSM Music Inc. ALL RIGHTS RESERVED.