CONTENT PROVIDER TERMS AND CONDITIONS
Effective as from 01 September 2019
Description of Fizitunes
The Platform is an audio content sharing platform available Online and as a Mobile Application, operating simultaneously, that allows users to upload, download and live streaming of audio Content.
Online Registered Content Providers (Registered here: https://www.fizitunes.com/signup) of the Platform may submit, upload and post high quality Audio; Music Sound Recordings, Live Concert Recordings, photos, text, graphics, comments, and other content, data or information (“Content”), which will be stored by Fizitunes at the direction of such registered Content Providers, and may be shared and distributed by such registered Content Providers, and other users of the Platform, using the tools and features provided as part of the Services and accessible via the Website and elsewhere.
Access to certain Services is only available to registered users; specifically, Content Providers.
All users of the platform shall be bound by the User Terms and Conditions here: https://www.fizitunes.com/terms
- a) Password
You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorised by you.
If your username or password is lost or stolen, or if you believe that unauthorised third parties have accessed your account, you are advised to notify Fizitunes in Email at >>[email protected] and should change your password at the earliest possible opportunity.
- b) Usernames
We reserve the right to disallow, cancel, remove or reassign certain usernames in appropriate circumstances, as determined by Fizitunes’s sole discretion, and may, with or without prior notice, suspend or terminate your account if activities occur on that account which, in our sole discretion, would or might constitute a violation of these Content Provider Terms of Conditions or our Guidelines, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
- c) Content to be deleted on cancellation of your account
Any attempt to terminate your account by means other than those described in the Termination section will not be considered a proper termination.
Once your account has been terminated, any and all Content residing in your account, or pertaining to activity from your account (for example, data relating to the distribution or consumption of your sounds), will be irretrievably deleted by Fizitunes, except to the extent that we are 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. Fizitunes shall not provide you with any file of data relating to activity associated with your account, whether before or after termination. 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.
USE OF THE PLATFORM
- You must not copy, rip or capture, or attempt to copy, rip or capture, any Content from the Platform or any part of the Platform, other than by means of download in circumstances where the relevant Uploader has enabled the download functionality with respect to the relevant item of Content.
- 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:
where such Content is Your Content, or
- 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.
- You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
- You must not make use of any bots, botnets, spiders, data mining tools, automated scripts, apps, plugins or extensions with respect to the Platform or any Content regardless of the configuration or mode of operation of the same, including without limitation any of the foregoing that automatically generates messages, plays audio Content, generates comments or favourites any Content or posts any activities. This does not apply to any apps, plugins or extensions officially released by Fizitunes and constituting Services.
- 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 any Content appearing on the Platform (other than Your Content).
- You must not permit any third party to, copy or adapt the object code of the Website or any of the 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.
- 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, libellous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in Fizitunes’s reasonable discretion;
any information, Content or other material that violates, plagiarises, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or
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 unauthorised advertising, promotional messages, spam or any other form of solicitation.
- You must not commit or engage in, or encourage, provoke, solicit or promote, any conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law or regulation.
- 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 downloaded or streamed.
- You must not make use of any bots, botnets, automated scripts, apps, plugins or extensions or other automated or electronic means to artificially increase your play count or downloads, add followers or otherwise to misrepresent the popularity of Your Content on the Platform, or offer or promote the availability of any such means to any other users of the Platform.
- 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.
- You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any Fizitunes employee.
- 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.
- You must not sell or transfer, or offer to sell or transfer, any Fizitunes account to any third party without the prior written approval of Fizitunes.
- 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.
- You must not use any automatic means of accessing, logging-in or registering accounts on the Platform.
- You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by Fizitunes or any Uploader; access or attempt to access 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 authorised to access; attempt to scan or test the vulnerability of Fizitunes’s servers, system or network or attempt to breach Fizitunes’s data security or authentication procedures; attempt to interfere with the Website or the Services by any means including, without limitation, hacking Fizitunes’s servers or systems, submitting a virus, overloading, mail-bombing or crashing.
Any and all Content that you upload, store, transmit, submit, exchange or make available to or via the Platform (hereinafter “Your Content”) is generated, owned and controlled solely by you, and not by Fizitunes.
Fizitunes does not claim any ownership rights in Your Content, and you hereby expressly 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 unauthorised 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 termination of your access to the Platform as described in the Repeat Infringers section below, and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rights holder.
SCOPE OF AGREEMENT
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 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, transmit or otherwise distribute, publicly display, publicly perform, prepare derivative works of, make available and otherwise communicate to the public Your Content within the parameters set by you using the Services. You can limit and restrict the availability of Your certain Content to other users of the Platform, and to users of Linked Services, at any time using the settings on the Artist’s Dashboard Page for each sound you upload, subject to the provisions of the Disclaimer section below.
You hereby acknowledge and agree that once Your Content is distributed to a Linked Service, Fizitunes 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 within the parameters set by the Uploader on the Platform or with the express written consent of the Uploader.
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to Fizitunes as follows:
- Your Content and the availability thereof on the Platform 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.
- 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 or likeness in Your Content and to publish the same on the Platform and via any Linked Services.
- Your Content, including any comments that you may post on the Website, is not and will not be offensive, abusive, libellous, 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.
- Your Content does not and will not create any liability to any third party on the part of Fizitunes, its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders.
Fizitunes reserves the right to remove Your Content, suspend or terminate your access to the Platform and/or pursue all legal remedies if we believe that any of Your Content breaches any of the foregoing representations or warranties, or otherwise infringes another person’s rights or violates any law, rule or regulation.
SCOPE OF CONTENT USE BY FIZITUNES
You hereby acknowledge and agree that Fizitunes:
- stores Content and other information at the direction, request and with the authorisation of its users,
- acts merely as a passive conduit and/or host for the uploading, storage and distribution of such Content, and
- 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, Fizitunes 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 Fizitunes may use your name, Content or excerpts thereof for promotional purposes. Fizitunes will issue a notification of the same through the email provided. An objection is to be raised within one working day. Thereafter Fizitunes shall construe acceptance.
You hereby acknowledge and agree that Fizitunes may include promotional material within Your Content before or after a download or as streaming takes place.
You hereby acknowledge and agree that Fizitunes can preview your song for 30 Seconds for free before a download takes place for sampling purposes.
You hereby acknowledge and agree that Fizitunes can use Your Content and excerpts thereof in Podcasts, DJ Mixes as well as terrestrial TV shows created by Fizitunes, as promotional material. Where your Content is included in DJ mixes for the purpose of distribution, such use will be paid as a download.
You hereby acknowledge and agree for Fizitunes to make available your Content for free on the Fizitunes mobile application.
You hereby grant Fizitunes permission to use your image, name, likeness and any artwork provided for marketing purposes to attract commercial opportunities for the Fizitunes platform. The permission shall extend to and not be limited to Fizitunes’s website and social media accounts, including but not limited to Facebook, Twitter and Instagram.
If you would prefer to send us your own written notification, please make sure that you include the following information:
- a statement that you have identified Content on Fizitunes that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act;
- a description of the copyright work(s) that you claim have been infringed;
- a description of the Content that you claim is infringing and the Fizitunes’s URL(s) where such Content can be located;
- your full name, address and telephone number, a valid email address on which you can be contacted, and your Fizitunes username if you have one;
- a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
Your notice should be sent to us by email to [email protected] and/or by mail to the following address:
Manchester United Kingdom
BLOCKING AND REMOVAL OF CONTENT
You have no right of continued access to any particular item of Content and Fizitunes shall have no liability in the event that you are unable to access an item of Content due to its removal from the Platform, whether by Fizitunes or the relevant Uploader.
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 behaviour is inappropriate and violates our Guidelines, we will send you a written warning to this effect. Any user that receives more than two of these warnings within any twelve-month period 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 Fizitunes at its discretion.
THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE WEBSITE AND ALL CONTENT AND SERVICES ACCESSED THROUGH OR VIA THE WEBSITE OR OTHERWISE, ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”.
WHILST FIZITUNES USES ALL REASONABLE ENDEAVOURS TO CORRECT ANY ERRORS OR OMISSIONS ON THE PLATFORM AS SOON AS PRACTICABLE ONCE THEY HAVE BEEN BROUGHT TO FIZITUNES’S ATTENTION, FIZITUNES MAKES NO PROMISES, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) REGARDING THE WEBSITE, THE SERVICES OR ANY PART OR PARTS THEREOF, ANY CONTENT, OR ANY LINKED SERVICES OR OTHER EXTERNAL SERVICES. FIZITUNES 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 OR PARTS THEREOF, THE CONTENT, OR THE SERVERS ON WHICH THE PLATFORM OPERATES ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FIZITUNES 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 UNAUTHORISED 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.
FIZITUNES AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SPECIFICALLY DISCLAIM ALL OF THE FOREGOING WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW, TOGETHER WITH ANY EXPRESS OR IMPLIED WARRANTIES REGARDING NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
WHERE 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
FIZITUNES AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SHALL HAVE NO LIABILITY FOR:
ANY LOSS OR DAMAGE ARISING FROM:
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; ANY CHANGES THAT FIZITUNES MAY MAKE TO THE PLATFORM OR ANY PART THEREOF, OR ANY TEMPORARY OR PERMANENT SUSPENSION OR CESSATION OF ACCESS TO THE PLATFORM IN OR FROM ANY OR ALL TERRITORIES;
ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTS HOLDERS 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 FIZITUNES OR ANY RELEVANT LAW ENFORCEMENT AUTHORITY REGARDING YOUR USE OF THE PLATFORM;
ANY ERRORS OR OMISSIONS IN THE PLATFORM’S TECHNICAL OPERATION, OR FROM ANY INACCURACY OR DEFECT IN ANY CONTENT; YOUR FAILURE TO PROVIDE FIZITUNES WITH ACCURATE OR COMPLETE INFORMATION, OR YOUR FAILURE TO KEEP YOUR USERNAME OR PASSWORD SUITABLY CONFIDENTIAL;
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
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM MUST BE NOTIFIED TO FIZITUNES AS SOON AS POSSIBLE.
ADDITIONALLY, 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 FIZITUNES AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN YOU AND FIZITUNES, AND THAT FIZITUNES’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You hereby agree to indemnify, defend and hold harmless Fizitunes successors, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys’ fees, resulting from:
Any activity related to your account, be it by you or by any other person accessing your account with or without your consent.
- CHANGES TO FIZITUNES
Fizitunes reserves the right to change, modify, withdraw or discontinue any of the features, services and functionalities of the Platform at any time and for any reason with or without notice. Fizitunes also 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, Fizitunes shall use its reasonable endeavours to notify registered users of such decision in advance.
Fizitunes also reserves the right to make changes, modify and amend its Terms and Conditions and shall ensure that the Content Uploader and Users are made aware of such changes through account notifications.
All revenue made by Fizitunes.com shall be distributed appropriately between Fizitunes.com and its content providers.
Fizitunes may engage a Content Uploader (artist) for brand endorsement opportunities. Such endorsements shall be subject to a separate revenue share Agreement.
Any payment due to the Uploader shall be calculated every quarter based on the number of downloads and frequency of streams of more than 30 Seconds and shall be subject to the relevant taxes required by the tax authority, shall strictly be paid to the Uploader and no other third party.
Fizitunes does not guarantee a fixed amount per download on the Revenue Share. Neither does Fizitunes guarantee a minimum share.
First time payment recipients may be required to present themselves at the Fizitunes offices at 18 Buttermere Road , Ashton Under Lyne OL7 9DW , United Kingdom with original documentation as proof of identification. Non- residents shall be required to swear an affidavit and attach with certified copies of identification and send to Fizitunes before any payments are made. The documents shall be sent to:
18 Buttermere Road
Ashton Under Lyne
Manchester , United Kingdom.
Payments shall be made for more than USD50 generated by Content uploaded by the Content Provider. Amounts less than the stipulated amount shall be carried forward to the next quarter and paid once accumulated to the minimum payable amount.
Fizitunes shall make such payments in a manner they find fit and may include but not limited to mobile money?
Without prejudice to the disclaimers set out in this agreement, Fizitunes will investigate and fraud regarding payments reported to them within 7 working days of receiving complaints on the same.
You hereby agree that Fizitunes 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 and/or any Services that Fizitunes 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 possibility to use or access the same from or within any territory or territories.
You may terminate this Agreement at any time by sending notice in writing to:
18 Buttermere Road
Ashton Under Lyne
Termination shall take effect Ninety days (90) on receipt of the Termination.
Fizitunes 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 as described above;
(iii) Fizitunes 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 Fizitunes at its discretion.
Following receipt of your notice of Termination, Fizitunes will delete your account and all associated Content and data. You are therefore advised to remove, copy or back up any Content in your account before sending us your notice of Termination.
ASSIGNMENT OF FIZITUNES’S RIGHTS TO THIRD PARTIES
Fizitunes 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 Fizitunes. 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 Fizitunes.
THIRD PARTY RIGHTS
DATA PROTECTION AND PRIVACY
APPLICABLE LAW AND JURISDICTION
This Agreement is subject to the LAWS OF UNITED KINGDOM and you hereby agree, and Fizitunes agrees, to submit to the exclusive jurisdiction of the courts in Nairobi, Kenya for resolution of any dispute, action or proceeding arising in connection with this Agreement.
Notwithstanding this, You agree that Fizitunes shall still be allowed to apply for injunctive remedies or other types of urgent legal remedy in any jurisdiction.
The services hereunder are offered by:
18 BUTTERMERE ROAD
ASHTON UNDER LYNE
MANCHESTER , UNITED KINGDOM
INDEPENDENT LEGAL COUNSEL
The Content Uploader acknowledges that he has read and understands this Agreement and acknowledges that he has had the opportunity to obtain independent legal advice with respect to it.