NSM Digital Music
Terms and Conditions of Use
Last updated: October 19, 2015
1. DESCRIPTION OF SERVICE; ACCEPTANCE OF TERMS; MODIFICATION
NSM Music Inc. (“Company”) provides mobile applications (“Apps”) through which patrons of
authorized venues (“you” or “Users”) can access, stream and publicly play music and videos
from Company’s library (the “Music Library,” and such activities collectively, the “Service”).
This Terms and Conditions of Use Agreement (the “Agreement”) sets out the legally binding
terms between you and Company. Your use of the 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 SERVICE.
The Service is available only to persons who are legal residents of the United States of America
and who are eighteen (18) years or older, or who are thirteen (13) to seventeen (17) years old
with parental permission. BY USING THE SERVICE YOU REPRESENT THAT YOU ARE
AT LEAST EIGHTEEN (18) YEARS OLD, OR THAT YOU ARE AT LEAST THIRTEEN
(13) YEARS OLD AND HAVE PERMISSION FROM YOUR PARENT OR LEGAL
GUARDIAN TO REGISTER YOUR DEVICE AND USE THE APP AND THE SERVICE,
AND YOUR PARENT OR GUARDIAN AGREES TO THE TERMS OF CONDITIONS OF
USE SET FORTH IN THIS AGREEMENT. You will use the Service in compliance with any
applicable laws, rules and regulations.
Company may change, suspend or discontinue any aspect of the App or 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 App or Service. Company may also
impose limits on certain features and services or restrict your access to parts or all of the App or
Service without notice or liability to you, including that the App and Service may not be
available for use on or with certain devices or software.
2. REGISTRATION; USER ACCOUNT; SECURITY
In order to use and access the Service through the App, you will first be required to create a user
account (“User Account”) and password and certain other registration information (collectively,
“Registration Data”). You agree that this Registration Data will be true, accurate, complete, and
current at all times. Registration Data and certain other information about you are subject to
Company’s Privacy Policy. You agree not to: (i) share your Registration Data with any other
person; (ii) knowingly use the name, identity or email of any other person to establish your User
Account or in connection with your use of the App or the Service without authorization; (iii) use
an email address or other designation that is profane, offensive or otherwise inappropriate; or (iv)
allow any third party to use your login information or User Account. You agree that you are fully
and solely responsible for maintaining the confidentiality and security of, and for all uses of,
your Registration Data and for all activities that occur under your User Account, including,
without limitation, any transactions made through your User Account, even if such activities
were not committed or authorized by you. You shall promptly notify Company of any breach of
security by email to info@nsmmusic.com.
Company reserves the right, in its sole discretion, to disable or terminate your User Account or
use of the App or 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
User Account 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 your User Account or Service by you with or without your knowledge or
otherwise arising from your failure to comply with this Section 2.
3. PRIVACY
Your privacy is very important to us. To understand our practices, please review our Privacy
Policy, which is incorporated by reference into this Agreement and also governs your use of the
App and Service.
4. LICENSE; SERVICE ACCESS
Company grants you a non-exclusive, non-transferable, non-assignable, limited license to access
and make personal use of the App 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
other User to, download, modify or make any use of any Company technology or content
(including the App and any content available thereon or thereof) without the express prior
written consent of Company (including the terms of this Agreement). This License does not
include any resale or commercial use of the App or Service or their contents, other than as
explicitly authorized by Company. The App and Service, 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:
(i) use the Jukebox for any purpose other than in connection with the Service; (ii) create any
derivative works based on the App or Service or any content made available through the App or
Service; (iii) reverse engineer or decompile any features or components of the App or Service;
(iv) defeat or overcome any encryption technology or security measures with respect to the App
or Service and/or data transmitted, processed or stored thereon; or (v) interfere with or disrupt
the App, Service or servers or networks connected to or operated therewith. 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 App or Service or
terminate your User Account at any time for any reason with any conditions.
Company may in the future update the App or Service to change the material, content and/or
features thereof at any time (an “Update”). Company may suspend access to the App’s or
Service’s online capabilities or withdraw or temporarily disable their availability for download or
use (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 the Service arising from or in
connection with an Update. Furthermore, Company is under no obligation to undergo an Update
of the App or Service to the extent any material, content and/or features contained therein or
related thereto is out of date.
5. TRANSACTIONS AND PAYMENT
The Service allows Users to engage in economic transactions, namely, using a credit card, debit
card, third-party online payment service such as PayPal, or other acceptable payment mechanism
(“Payment Method”) to pay for the Service offered by Company. When you provide information
related to a Payment Method to Company, 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 User Account and any Payment Method. You agree that
Company and/or a third party may charge your Payment Method for any amounts (including any
taxes and late fees, as applicable) as may be accrued by or in connection with your User Account
as a result of your use of the App and Service. Failure to comply with this provision (including
without limitation falsification of any information relating to your User Account or Payment
Method) may, at Company’s option, result in immediate suspension or termination of your right
to use the App and Service. If your Payment Method expires you will remain responsible for any
uncollected amounts. Company reserves the right to pursue collection of any amounts you fail to
pay in connection with your User Account and all costs incurred in connection with the
collection of such uncollected amounts (including, without limitation collection, agency fees,
attorneys’ fees and court costs).
Transactions may take place through an existing payment mechanism via a third party provider,
including a mobile application platform or mobile service provider, in which case applicable
payment terms and conditions will be those of the applicable platform or service provider,
including any related privacy policy (“Third Party Payment Terms”). In ordering, purchasing or
accessing any such paid services, you agree to be bound by and accept the Third Party Payment
Terms, which are deemed incorporated by reference into this Agreement and are subject to
change from time to time without prior notice.
All fees in connection with the use of the Service are payable in advance, all sales are final and
all charges are nonrefundable. Company may offer you the opportunity to purchase credits to
play content from the Music Library in an aggregated basis (“Credits”), which you will be
charged for in advance, and which are not refundable. Company may provide expiration dates for
any purchased Credits, information with respect to which will be specified in a future version of
this Agreement and/or at the time of purchase. Pricing is subject to change at any time and you
should terminate use of the Service immediately if you do not agree with any price change.
In addition to the fees that Company charges for your use of the App and/or Service, you are also
responsible for all fees associated with accessing and connecting to the App and Service,
including, without limitation, all telephone and internet access lines/networks (including longdistance charges, when applicable), telephone and computer equipment and any other data or
service fees. Please consult your phone or wireless carrier for more information about such 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.
6. INTERNATIONAL
You agree to not use or export any part of the App 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.
7. INTELLECTUAL PROPERTY
You acknowledge and agree that Company and/or its content licensors, jukebox operators,
venues and other partners retain all right, title and interest in and to (i) the App and Service; (ii)
all software, content, and data provided on or through the App 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 App and Service not specifically licensed under this
Agreement.
8. 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 App 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
App; (iii) disobey any requirements, procedures, policies or regulations of networks connected to
the App; (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 User Account, freeze your
transactions and refuse to provide the App or 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 other Users.
9. 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 App, the Service or your User Account 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 App 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 App or Service.
You have the right to cancel your User Account or Service at any time (provided that you
understand that Company will not refund any amounts paid by you for use of the Service,
including for any remaining Credits in your User Account). If you do not agree to the terms in
this Agreement, your sole remedy is to not use the App or Service. To cancel your User Account
or subscription to the Service, please send an email to info@nsmmusic.com setting forth the
email you used at Registration and explicitly stating your desire to cancel. All provisions hereof
which by their nature should survive, shall continue in full force and effect upon any termination
of this Agreement. You will be responsible for any damages that may result or arise out of
termination of your User Account, whether at law or in equity.
10. 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 App and Service shall be in compliance with any
applicable laws, rules and regulations of any governmental authority.
11. DISCLAIMERS
YOUR USE OF THE APP, THE SERVICE AND ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE APP OR SERVICE IS AT YOUR SOLE RISK. THE APP, THE SERVICE
AND ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE APP 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 NONINFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE APP, SERVICE
AND ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE APP OR SERVICE WILL MEET
YOUR REQUIREMENTS, (ii) THE APP AND THE SERVICE WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE APP, SERVICE AND ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE APP 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 APP 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 APP OR
SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS
AGREEMENT.
Operation of the App 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 App or Service.
Company is also not responsible for any content transmitted through the App 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 App or Service that you might find to be offensive.
You acknowledge that the entire risk arising out of the use, inability to use or performance of the
App or Service remains with you to the maximum extent permissible under law.
12. INDEMNIFICATION, LIMITED LIABILITY, CLASS ACTION 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 App and Service; (ii) any use of your Registration Data or
User Account, including without limitation the illegal or improper use of your Registration Data
or User Account by someone to whom you have given permission; (iii) any breach of any
representation, warranty, covenant or obligation of yours under this Agreement; (iv) your
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 APP
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.
13. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS PROCEDURE
Company respects the intellectual property rights of others and asks that you do the same. If you
believe any other User of the App or the 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 App or 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.
14. 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 App,
Jukebox or the 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.
15. 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.
16. MISCELLANEOUS
This Agreement along with the Privacy Policy and any additional rules incorporated by reference
herein constitute the entire agreement between you and Company and govern your use of the
App 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 App, 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 App or
Service without the prior written consent of Company.
© 2015 NSM Music Inc. ALL RIGHTS RESERVED.