Please read these General Terms of Use (“Terms of Use”) carefully before using the Service offered by Winamp. These General Terms of Use, together with any Specific Terms of Use with respect to Creators, form the “Agreement” and set forth the legally binding terms and conditions for your use of the Site and the Service owned and operated by Company, including any mobile software applications offered or published by Company.
SCOPE OF APPLICATION
By using the Site or Service in any manner, you agree to be bound by these Terms of Use. These Terms of Use apply to all users of the Site or Service, including Users and Creators. Whenever not specifically targeted at a User or at a Creator, a provision hereunder is to be considered applicable indistinctively to a User and a Creator.
DEFINITIONS
· Affiliate: means, with respect to a specified entity, (i) an entity that directly or indirectly, through one or more intermediaries, owns more than 50% of the outstanding voting shares of the Company, and (ii) an entity that directly or indirectly through one or more intermediaries, is controlled by the Company, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting shares, by contract interest or otherwise.
· Artwork(s): the sound recording or album cover associated artwork, including images, photographs, graphics, and descriptive text.
· Collective Management Organization (“CMO”): generic term representing a PRO and/or an MRO.
· Content: includes, without limitation, any user submissions, videos, audio clips, written forum comments, information, data, content from an external website (e.g. link or extracts…), text, photographs, scripts and graphics.
· Creator: User of Winamp for Creators, typically a music artist (singer, musician, songwriter, …), a music label or publisher, a podcaster, an ebook publisher or a webradio administrator.
· Mechanical Rights Organization (“MRO”): an organization collecting mechanical reproduction royalties on behalf of songwriters and publishers.
· Music: content owned or controlled by Creator, including musical compositions (“Musical Works”), lyrics and and musical notations, sound recordings, and all associated metadata.
· Performing Rights Organization (“PRO”): an organization collecting public performance royalties on behalf of songwriters and publishers.
· Service: the set of services offered by Company.
· Site: corporate.winamp.com, and any mobile or desktop software applications giving access to the Service.
· Trademarks: the trademarks, logos and service marks displayed on the Site.
· User: user of the Winamp player (mobile, desktop and/or web) or user of the Winamp player and subscriber to at least one Creator tier.
· Winamp (or “Company”): the company registered in Belgium with the company registration number BE 0547.610.431. Our registered office is Lennik Road, 451- 1070 Brussels – Belgium. It shall also refer to the Company’s Affiliates.
ACCEPTANCE OF TERMS
The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein, which Terms of Use also incorporate by reference Specific Terms of Use (as defined hereafter), the Privacy Policy, the Pricing document and all other operating rules, policies and procedures that may be published from time to time on the Site by Company, each of which may be updated by Company from time to time without prior notice to you.
For Creators, the use of the Service is also subject to specifics terms of use promulgated by Company from time to time (“Specific Terms of Use”).
ACCOUNT OPENING
You represent and warrant that if you are an individual, then you are of legal age to form a binding contract, and that all registration information you submit is accurate and truthful. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your account.
You shall not (i) select or use as a User ID a name of another person with the intent to impersonate that person; (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a User ID a name that is otherwise offensive, vulgar or obscene.
Company reserves the right to cancel a User ID in its sole discretion.
You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the security and confidentiality of your password. You shall never use another user’s account without said other user’s express permission. You will immediately notify Company in writing of any unauthorized use of your account, or other account related security breach of which you become aware.
If you are a Creator
As a Creator, you must select a password and screen name (“user ID”).
The Service is available only to Creators (or their representative) who have reached the age of majority in their country of residence. If you are using or opening an account as an individual, you agree to be bound by these Terms of Use. If you are using or opening an account on behalf of a company, entity or organization, band or other musical group (including, but not limited to, a recording label or a publisher) (each a “Creator Entity”), then you represent and warrant that you: (i) are an authorized representative of that Creator Entity and any recording artists represented by such Creator Entity (a “Represented Creator”) with the authority to bind such Creator Entity or Represented Creator to these Terms of Use and (ii) agree to be bound by these Terms of Use on behalf of such Creator Entity and/or Represented Creator.
If you are a User
As a User, you may browse the Site and view Content or a portion thereof without opening an account, but as a condition to using certain aspects of the Service, you are required to open an account with Company and select a password and screen name (“user ID”).
As a user, if you decide to open an account as required to use certain aspects of the Service, you need to (1) be at least 13 years of age (or the equivalent minimum age in your country of residence), or (2) have parent or guardian consent if you are a minor in your country of residence. Company reserves the right to request a written proof of the parent or guardian’s consent.
PRIVACY
Your privacy is important to us. Please review our Privacy Policy. It describes how we collect, use, and share information when you use the Site and Service.
Extraction and reuse of personal data publicly accessible on our Service is not allowed.
SUBSCRIPTION
As a Creator, you can subscribe to all or part of the Service available to Creators, as described in the Specific Terms. As a User, you can purchase access to Music from Creators through the Service “Fanzone” by subscribing to a Creator tier. You will be able to subscribe to other Services as Company will roll them out later.
You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your account.
ELIGIBILITY
At its sole discretion, Company reserves the right to accept, deny or remove access to the Service, or part thereof, for Music, Artwork and related content submitted by the Creator, depending notably on: (1) the type of rights or license the Music is subject to (e.g. All rights reserved, Some rights reserved, …); (2) whether the Creator or a specific submitted piece of Music is or later becomes registered with a Performing Rights Organization or other Collective Management Organization.
NO RIGHT OF WITHDRAWAL
You expressly acknowledge and agree that the provision of the Service begins immediately upon the subscription to the Service. Consequently, no request for withdrawal cancellation or refund will be accepted for the period subscribed.
SUBSCRIPTION FEES
The subscription fees may be altered by notifying you of the changes at least one month prior to its coming into effect. You agree to read it upon receipt of the notification of the modification. You have the right to accept or reject the proposed fees before the date proposed for their entry into force. If you don’t notify Winamp of your wish to terminate your subscription before the new subscription fees come into force, you shall be deemed to have accepted it. If you don’t agree with the new subscription fees, you may yourself terminate your subscription immediately and at no cost, at any point before the new fees come into force. Winamp has the right to terminate, at no cost and at any time until the date of entry into force of the new subscription fees, its relationship with you if you have notified Winamp of your refusal of the new subscription fees.
If you are a Creator
Subscription fee will be charged in advance upon subscription to the Service and then every year (subscription anniversary date) on your credit card or from the available amount in your wallet until the subscription is terminated, whether the termination is at your initiative or at the Company’s initiative.
If you are a User
Subscription fee will be charged in advance upon subscription to the Service and then every month on your credit card until the subscription is terminated, whether the termination is at your initiative or at the Company’s initiative.
CREATOR WALLET
As a Creator, once revenue has been credited to your wallet, you will be able, after two months, to request the withdrawal from your wallet according to the minimum withdrawable amount set by Winamp. You will be responsible for any bank fees or other charges related to such withdrawals.
DURATION AND RECONDUCTION
If you are a Creator
Subscription is for an initial period of one year. Unless the Creator cancels it, the subscription to the Service then automatically renews for successive periods of one year.
If you are a User
Subscription is for an initial period of one month. Unless the User cancels it, the subscription to the Service then automatically renews for successive periods of one month.
RULES AND CONDUCT
As a User, you undertake not to use the Service for any purpose that is prohibited by these Terms of Use. The Service (including, without limitation, access to any Music and Content) is provided only for your own personal use.
The Service is provided to the User only for non-commercial use.
You are responsible for all of your activity and your Content in connection with the Service.
By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, including without limitation, that:
· infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
· you know is false, misleading, untruthful or inaccurate;
· is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
· constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
· exploits people in a sexual or violent manner;
· contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party; or
· impersonates any person or entity, including any employee or representative of the Company.
Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its third-party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Maillist, Listserv, any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
You shall abide by all applicable local, state, national and international laws, and regulations.
SUBMISSIONS
The Service provides Users and Creators with the ability to submit written forum comments to the Site (the “Submissions”).
By submitting Submissions on the Site or otherwise through the Service, you understand that Winamp shall have the right to delete, edit, modify, reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such content originated and that Winamp will not be liable for any errors or omissions in any content; and that Winamp cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.
You represent and warrant that you have permission (1) from the relevant owners to use content protected by their intellectual property rights within your Submissions, and (2) to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within your Submissions.
Winamp does not endorse and has no control over any Submission. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
SANCTIONS FOR NON-COMPLIANCE
In the event of a breach of your obligations, the Company reserves the right to:
· suspend or close immediately and without notice, temporarily or permanently, your Account or your access to all or part of the Service;
· in case of suspicion of a breach, to suspend your Service pending clarification or provision of additional information;
· not pay the Creator concerned until he/she has sent all the information required by Company;
· to take all appropriate measures and to initiate and pursue any legal proceedings, to inform, if necessary, the competent authorities, to cooperate with them and to provide them with all the information that may be necessary for the investigation and repression of illegal or illicit activities,
· suspend or close the Service in the event of an injunction from an administrative or judicial authority.
In the event of suspension or deletion of your account or the Service by the Company, we shall use reasonable efforts to inform you, unless such information would compromise legitimate security measures or other legitimate interests or be illegal.
The company may resume access to the account or the Service as soon as possible after the reasons that led to the suspension of its use has disappeared and Company has been informed.
SUBSCRIPTION CANCELLATION
If you are a Creator
You can cancel your subscription at any time by following the instructions on the Site. Once you cancel, your Service will continue for the duration of the annual billing cycle for which you have already paid. We do not issue partial refunds for unused time in an annual billing cycle for which you have already paid, but you will not be charged for any following annual billing cycles.
If you are a User
You can cancel your subscription at any time by following the instructions on the Site. Once you cancel, your Service will continue for the duration of the monthly billing cycle for which you have already paid. We do not issue partial refunds for unused time in a monthly billing cycle for which you have already paid, but you will not be charged for any following monthly billing cycles.
THIRD-PARTY SITE
The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under Company’s control, and you acknowledge that Company is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Company or any association with its operators. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
DEATH OF CREATOR
In the event of the death of a Creator, his beneficiaries, assignees or successors may take over the benefit of the Service, subject to compliance with these General Terms of Use and notably the eligibility rules.
It is specified that in the event of multiple heirs, assignees or successors, the latter are required to appoint a single representative, whether a natural person or a legal entity, and to give him all powers to represent them in the execution of the Agreement.
Where applicable, Winamp may request the heirs, assignees or successors to provide any document proving their status. Failing this, Winamp may terminate the Agreement.
TAX
In certain jurisdictions, tax regulations may require that we collect and/or report information about you, your payments and/or withhold taxes from payouts to you. Winamp will report any information to the relevant tax authority and you as required by law. Winamp may withhold any taxes, duties, charges or levies on payments to you as required by law. Winamp shall remit any such withheld taxes, duties, charges or levies to the appropriate tax authority. Under this Agreement you are required to provide Winamp with any information necessary for Winamp to fulfill its tax information reporting and tax withholding obligations.
INTELLECTUAL PROPERTY RIGHTS
You agree that the Site and the Service contains content specifically provided by Company or its partners and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any such content accessed through the Site and the Service.
WARRANTY DISCLAIMER
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content or access thereto through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Site, and Company will not be responsible or liable for the accuracy, legality or decency of material contained in or accessed through the Site or the Service.
TERMINATION FOR CONVENIENCE
Company may terminate your access to all or any part of the Service at any time, without cause, with a one-month prior written notice, which may result in the loss of access to all Music, Content and other information associated with your subscription. To the extent permitted by law, the Company shall bear no liability to you and to any third party for any loss or damage incurred by you or any third party arising from such termination.
Company reserves the right, at its sole discretion, to change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you an e-mail. Company may also impose limits on certain features and/or restrict your access to parts or all of the Service without notice or liability.
INDEMNIFICATION
You shall defend, indemnify, and hold harmless Company and its affiliates, authorized sublicensees and distributors, and each of their employees, contractors, directors, suppliers and representatives, from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees and court costs, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content, Music or otherwise from your submissions, violation of these Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, and for breach of any of your representations and warranties in these Terms of Use. For the avoidance of doubt, you hereby agree to defend, indemnify, and hold harmless Company from any and all claims by a third party owning, controlling or claiming any right in or to your Music, including but not limited to claims for performance royalties, synchronization royalties, mechanical royalties, and use or re-use fees. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Company in asserting any available defenses at your sole expense.
EXCLUSION AND LIMITATIONS OF LIABILITY
Because Company is not the buyer/subscriber or seller in any actual transaction between Creators and Users, Company does not have the duty to resolve and will not be involved in resolving any disputes between participants related to or arising out of any such transaction. Creators are individually responsible for compliance with all consumer rights laws applicable to their transactions, including EU Consumer Rights Laws.
All information and/or data on the Site is provided on an “as is” basis. Save to the extent required by law, no representations, warranties or terms of any kind are made (or shall be implied by statute or otherwise) in respect of the Site, the Music or the Content, including, without limitation, warranties of satisfactory quality, conformity to contract, accuracy, adequacy, conformity to description or fitness for any particular purpose.
Neither the Company nor any of its third-party service providers or Affiliates gives any warranty or guarantee relating to the availability of the Service, the Site or that the Service, the Site and/or our operation of it, or the server that makes the Site available are error or virus free or free of other harmful components or that your use of the Site and/or the Content will be uninterrupted.
Except where the law requires the Company to provide a determined result, all of the Company’s obligations must be considered obligations of means. You agree that the Company, its third-party service providers, officers, shareholders, employees, agents, directors, subsidiaries, Affiliates, successors, assigns, suppliers, and licensors shall not be liable for:
(1) any indirect, special, incidental, punitive, exemplary, or consequential damages;
(2) any loss of use, data, business, or profits (whether direct or indirect), in all cases arising out of
a. interruption of business; or
b. access or other delays, terminations, suspensions, denials or access interruptions to the Site or the Service; or
c. data non-delivery, data mis-delivery, data corruption, destruction of data or other modification of data; or
d. third party website links on the Site; or
e. reliance on the information contained on the Site; or
f. computer viruses, system failures or malfunctions which may occur in connection with your use of the Site; or
g. any inaccuracies, omissions or misleading, false or deceptive statement in the Content and/or the Music; or
h. events beyond our reasonable control.
Company’s overall liability for all claims relating to the Service and the Site is limited to:
· With respect to the User: EUR 30.00.
· With respect to the Creator: the greater of (a) the revenue he received from Company during the twelve months prior to the first claim; or (b) EUR 50.00.
For clarification, these terms do not limit Company’s liability for fraud, fraudulent misrepresentation, death or personal injury to the extent that the applicable law would prohibit such a limitation and for any other liability that, by applicable law, may not be limited or excluded.
Except where such restriction is prohibited under the applicable law, any claim by you arising under these Terms of Use must be submitted to the competent court within one year after the date you first know or reasonably should know of the act, omission, or default giving rise to the claim; and you shall have no right to any remedy for any claim not asserted within that time period.
Company will not be liable for any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its control, including but not limited to industrial disputes of whatever nature, acts of God, public enemy, acts of government, failure of telecommunications, fire or other casualty.
MODIFICATION OF TERMS OF USE
Company reserves the right, at its sole discretion, to modify or replace any of the terms in these Terms of Use, at any time by posting a notice on the Site or by sending you an e-mail. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to these Terms of Use constitutes acceptance of those changes. Notwithstanding the preceding sentences of this section, no modifications to these Terms of Use will apply to any dispute between you and Company that arose prior to the date of such modification.
INTERNATIONAL / NON-BELGIAN USE
Company makes no representation that the Content is appropriate or available for use in locations outside of Belgium, and accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws.
COMPLAINTS
Any complaint relating to the application of these Terms of use must be sent to us by-email at [email protected] so that it can be dealt with as soon as possible.
If you are a consumer located in the European Union and if the complaint submitted under the conditions described above fails to be resolved amicably, in accordance with Article 14 of Regulation (EU) No. 524/2013 of 21 May 2013, you may submit the dispute to an out-of-court settlement procedure via the European Online Dispute Resolution (ODR) platform by electronic means at the following address: https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.chooseLanguage
APPLICABLE LAW AND JURISDICTION
If you are a Creator
These Terms of Use are governed by and shall be construed in accordance with the laws of Belgium without regard to any conflict of laws principles. Any dispute arising out of or relating to its interpretation or performance, or the breach thereof, shall be exclusively referred to and settled by the competent courts of Brussels, Belgium.
If you are a User
These Terms of Use are governed by and shall be construed in accordance with the law of the User’s country of residence. Unless you are a consumer electing to use the out-of-court settlement procedure via the European ODR platform as mentioned under the “Complaints” section, any dispute arising out of or relating to its interpretation or performance, or the breach thereof, shall be exclusively referred to and settled by the competent courts of the User’s country of residence.
CLASS ACTION WAIVER
Where permitted under the applicable law, you and Winamp agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless both you and Winamp agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
MISCELLANEOUS
These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent (e.g. as part of a merger or acquisition of its business or its assets).
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under these Terms of Use shall be given to Winamp through the contact form or, to you either by e-mail to the address you provide during the registration process or by posting a notice on the Site. Notice will be deemed received 24 hours after e-mail is sent.
These Terms of Use supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Company.
If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Last version updated on September 21th, 2022