END USER LICENSE AGREEMENT
YOUR USE OF THE APPLICATION, THE SOFTWARE, AND/OR THE SERVICE (EACH AS DEFINED BELOW) IS CONDITIONED UPON YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY TERM OR CONDITION OF THIS END USER LICENSE AGREEMENT, THEN YOU MUST CEASE SUCH USE IMMEDIATELY, AS WELL AS DELETE OR UNINSTALL THE APPLICATION, THE SOFTWARE AND/OR THE SERVICE FROM YOUR COMPUTER OR MOBILE DEVICE.
Your use of the Zya software (the “Software”), Zya’s Ditty mobile application (the “Application”), and any other software, mobile application, and/or website owned or operated by Music Mastermind, Inc., d/b/a Zya (“Zya”), including, without limitation, the website located at zyamusic.com, (“Ditty Website”), the Application, any other such software, applications and/or websites, and the Software are collectively referred to as the “Service”), including, without limitation, your use of sound recordings, musical compositions, sound effects, audiovisual recordings, text, graphics, information, newsletters, photographs, and other related content (the “Content”), is expressly conditioned on your acceptance of, and agreement to, this End User License Agreement (the “Agreement”). This Agreement sets forth the terms and conditions which apply to your use of the Service. By using the Service, you agree to abide by all of the terms of this Agreement. As used herein, the term “you” and “your” shall mean you, either individually or as a single entity. All references to “we,” “us” or “our” shall refer to Zya.
You may only use the Service if you are thirteen (13) years old or older, and if you assume the obligations set forth in this Agreement, and assume full responsibility for your use of the Service. Any person who provided their personal information to Zya represents that they are thirteen (13) years of age or older. If you are 13 or older, but under the age of 18, you must review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand and agree to it.
If you do not agree with any of Zya’s guidelines, rules, regulations, restrictions, or with any terms of this Agreement, you must not use the Service and you must delete and/or uninstall the Service from your computer or mobile device. Zya reserves the right to modify this Agreement at any time, in accordance with the “Change to Terms and Conditions” section set forth below. Your continued use of the Service following the posting of any changes to this Agreement means that you accept and agree to abide by such changes. If you do not comply with the terms of this Agreement and Zya’s Terms of Service, which is incorporated herein by reference, at all times when using the Service, Zya reserves the right to deny or restrict your access to the Service. The terms and conditions of this Agreement shall apply regardless of the means by which the Service was accessed, including, but not limited to, through personal computers, mobile phone or computing devices, electronic mail, the Zya Website, or links from other websites.
With respect to your permitted use of the Application as downloaded from the Apple App Store (the “Apple Application”) or Google Play (“Google Application”), you acknowledge that this Agreement is entered into between you and Zya, and not with Apple, Inc. (“Apple”) or Google Inc. (“Google”). Neither Apple nor Google are responsible for the Apple Application or the Google Application, respectively, and the Content contained in the Apple Application or the Google Application.
1. Use of the Service. By using the Service, you agree that:
· Your use of the Service, including, without limitation, any of its Content, is solely for your own use and benefit.
· You will not interfere with any other user’s use and enjoyment of the Service. You will not use the Service or any of Zya’s or its affiliates’ or licensors’ trademarks, service marks, copyrights, or logos in any manner inconsistent with this Agreement or in unsolicited mailings or spam material.
· You will not submit, post, upload, distribute, or otherwise make available any blog or forum post, content, New Composition (as defined below in Section 24), New Master (as defined below in Section 24), or Video (as defined below in Section 24) that contains, in the opinion of Zya: (1) personally identifiable information about another person; (2) unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, profane, lewd, lascivious, filthy, excessively violent, offensive, or otherwise objectionable or unlawful material; (3) material that could harm minors; or (4) any material that infringes any intellectual property or other proprietary rights of any person or entity, or any right of any person or entity.
· You will not delete any legal notices, proprietary notices (including trademark or copyright symbols), or disclaimers, or modify any logos that you do not own or have written permission to modify.
· You will not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, but not limited to, by using another person’s username, password, name, likeness, voice, or photograph. You will not submit any personal information to the Service, about yourself or others, that is not accurate and truthful.
· You will not use the Service for any harmful or unlawful purpose, including engaging in (or attempts to engage in) any criminal activity including, but not limited to, stalking, sexual assault, fraud, harassment, and conspiracy to commit any criminal activity.
· You will not submit, post, upload, distribute, or otherwise make available any material that may contain a computer virus or other harmful material, or otherwise impair, interrupt, destroy or limit the functionality of any computer software, hardware, or telecommunications equipment.
· You will not attempt to gain unauthorized access to Zya’s computer systems. You recognize that not all areas of the Service may be available to you.
· You are authorized to use Ditty Products (as defined below in Section 24), whether created by you or other users, only for personal, non-commercial use. Ditty Products may only be used on the Ditty Platform, the Facebook Messenger Platform, and/or other platforms expressly allowed by this Agreement (as this Agreement may be amended from time to time by Zya). You may not use Ditty Products on more than one (1) device at any time. You may not reproduce or copy a Ditty Product. You may not capture or otherwise copy any of the Ditty Products, whether into MP3 format, other downloadable files, or otherwise, except as otherwise specifically permitted by the Service and as specifically set forth herein.
· Some Ditty Products may be capable of being downloaded only once and cannot be replaced if lost for any reason. It is your responsibility not to lose, destroy, or damage Ditty Products once downloaded, and you may wish to back them up.
· Zya may, as a courtesy, allow you to store a limited number of Masters, Compositions, New Masters, New Compositions and Videos as files which are stored within the Service (“Song Files”) and are accessible to you only through the Service. The amount of Songs allowed (the “Song Storage Cap”), if so limited, may change from time to time, as indicated in the Service. You will not be allowed to store more Song Files than the Song Storage Cap. Though Zya may allow such storage through the Service, Zya is not responsible for the loss, destruction or damage of such Song Files.
· Despite the use of the term “purchase” or other similar terms throughout this Agreement, the Ditty Products are licensed, not sold, to you. Your limited license to each Ditty Product that you obtain through the Service is subject to your prior acceptance of this Agreement, and you agree that the terms of this Agreement will apply to each Ditty Product that you license through the Service, unless that Ditty Product is covered by a separately noted end user license agreement, in which case the terms of such other agreement will apply.
· Your use of Ditty Products does not grant you the right to make any commercial use of any Ditty Products, including, but not limited to Compositions, Masters, New Masters and/or New Compositions. Any burning or exporting capabilities expressly made available to you by Zya, provided by Zya in connection with the Service are solely an accommodation to you, may only be used by you as reasonably necessary for personal and non-commercial use, and shall not constitute a grant, waiver, or other limitation of any rights of the copyright owners in any content embodied in any Ditty Product.
· You acknowledge that, because some aspects of the Service, Ditty Products, and administration of the Usage Rules entails the ongoing involvement of Zya, if Zya changes any part of or discontinues the Service, which we may do at our election, you may not be able to use Ditty Products to the same extent as prior to such change or discontinuation, and that we shall have no liability to you in such case. Further, you acknowledge that some aspects of the Service, Ditty Products, and administration of the Usage Rules entails the ongoing involvement of, and is subject to contractual obligations to, the Composition Owner(s) (as defined below in Section 24), the Master Owner(s) (as defined below in Section 24), and/or other licensors of Zya, in each case which may limit your rights and/or access to such Service and Ditty Products. For example, the rights to New Compositions and New Masters created from, Compositions and Masters are not unconditional and not in perpetuity, and after Zya’s rights to license Compositions and Masters to you expire or are otherwise terminated or limited, your rights to use and exploit the New Compositions and New Masters you have created from such Compositions and Masters may be limited or extinguished altogether at any time in Zya’s sole discretion without notice or liability to you.
· If the Composition Owner, Master Owner, or any other publisher, artist or other licensor of licensed content (contained in an Ditty Product, for any reason requests that Zya take down access to any particular Master or Composition that contains such Ditty Product, Zya has the right to take down, or otherwise revoke your access to, or your rights to use, the Master, Composition, New Master and New Composition, or Video
Zya cannot and does not guarantee that other users of the Service will comply with the rules above.
2. Proprietary Rights to the Service. Title and intellectual property rights to the Service are owned by Zya and its affiliates or licensors or otherwise by the owners of such material and are protected by copyright laws and treaties. Trademarks, trade names, service marks, copyrights, and logos of Zya and its affiliates and licensors may not be used or copied in any manner without the express prior written consent of Zya or its licensors, as applicable, except as specifically provided herein. All other trademarks, trade names, service marks, copyrights, and logos appearing on the Service are the property of their respective owners. Except as expressly set forth herein, you shall not reproduce, sell, transfer, advertise, license, synchronize with any medium or otherwise deal in, use, exploit or dispose of the Service; modify, reverse-engineer, decompile or disassemble the Service; or cause, permit or authorize others to do any of the above.
3. Account, Responsibility for Contact Information and Passwords. When accessing the Service through certain means, you may have the opportunity to become a registered user of the Service. As a registered user of the Service, you may establish an account. You are solely responsible for maintaining the confidentiality and security of your account and any user identifications, passwords, authentication codes or other security devices or procedures (collectively, “Passwords”) issued to you. You may not share your account or Passwords with any third party. You agree not to alter, delete, disable or otherwise circumvent any Password or permit or assist any other party to do so in a manner not authorized by us. We reserve the right to suspend your access to the Software and change (or require you to change) your Passwords at any time. You are responsible for all transmissions, instructions, information, processes, click stream data or other communications (“Communications”) attributable to your account and Passwords, whether entered by you or by any other person, and any agreement or consent communicated from such access shall be deemed to be a duly signed writing of yours sufficient to bind you. We are not responsible for any losses arising out of the unauthorized use of your account. You shall notify us immediately upon learning or suspecting that any unauthorized party has obtained or used your account or Password. If any of your contact details (including without limitation, user name, email address and billing address) change, you agree to notify us in writing within thirty (30) days of the occurrence of such change. You agree that we may store and use the information you provide for use in maintaining and billing fees to your account, as applicable.
4. Change to Terms and Conditions. Zya may modify this Agreement, effective immediately, at any time, including, without limitation, to impose or modify charges for use of the the Software, the Application, Ditty Website, and/or the Service or any portion thereof, by posting such changes to the Ditty Website. Your continued access to or use of the the Software, the Application, Ditty Website, and/or the Service following the posting of any changes to this Agreement means that you accept and agree to abide by such changes.
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7. Creation of New Masters And New Compositions. You may use Compositions and Masters (as defined below in Section 24) purchased by you in connection with New Masters and New Compositions created by you using the Service, subject to all the terms and conditions contained herein.
8. Ownership of New Masters And New Compositions. To the extent that you create any non-infringing (i.e., a “work” which has been previously authorized by the Application, including an authorized so-called “derivative work” [a newly created work based on previously existing works] permitted by the Application, and does not infringe on the rights of any third party rights holder) New Masters and New Compositions (cumulatively, the “Works”) using the Application, as between you and Zya, Zya shall own all rights in and to (including, but not limited to, the copyrights therein) such New Masters and New Compositions as “works made for hire” pursuant to the Copyright Laws of the United States. In the event that any of the Works are, for any reason, not considered “works made for hire”, then you agree to assign all rights in any such Works to Zya, throughout the universe, in perpetuity. Zya shall own all rights to the Works in any manner whatsoever, including, without limitation, the use thereof in connection with the Application, and otherwise in accordance with the terms set forth herein, however Zya will not exploit the Works in any manner, other than in connection with the Application, without your prior written consent. Notwithstanding anything contained herein to the contrary, Zya acknowledges that third parties may actually own content licensed to Zya and made available by Zya for use by you in connection with the Application. In the event that your or Zya’s use of any New Master or New Composition, in accordance with the terms set forth herein, results in generating any ancillary revenues, Zya shall have the exclusive right to claim and collect any and all such revenues, and you shall not be entitled to any participation therein.
9. Grants of Rights to Zya; Promotional Rights. Zya’s rights in any New Masters and New Compositions, created by you hereunder shall include, without limitation, the rights to the exclusive administration thereof, throughout the universe, in perpetuity, subject to the pre-existing rights of any third parties, including, without limitation, the Composition Owner and the Master Owner; provided, however, that Zya is under no obligation to administer such rights or to exploit any New Master and New Composition created by you. Without limiting the generality of the foregoing, Zya and its affiliates, distributors, and licensees shall have the sole, exclusive, perpetual and unlimited right to publicly perform the New Masters and New Compositions, and to reproduce, transfer, distribute, the New Masters and New Compositions within or directly in connection with the Application, all throughout the Territory and under any trademarks, trade names or labels designated by Zya or its affiliates or licensors, and in any manner, method, medium, format, configuration, platform or technology, now or hereafter known or devised, or to delay or refrain from doing any of the foregoing.
Further, you hereby grant to Zya the unlimited, royalty-free, transferable, sub-licensable, perpetual right, throughout the universe, to use (and authorize others to use) to use any New Masters and New Compositions created by you (or any materials made a part thereof by you), or under your account in connection with the use, exploitation, sale, distribution, licensing, advertisements, marketing and/or promotion of any Ditty Products, the Zya Website, the Application, the Software, and/or the Service, and any matters related thereto.
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11. Electronic Contracting. Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE ZYA WEBSITE AND THROUGH THE SOFTWARE AND THE APPLICATION, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility. We are not responsible for typographic errors.
12. Purchase and Subscription Policies. Certain Ditty Products may be available for use in connection with the Service, and may, in Zya’s sole discretion, be licensed on a royalty-free basis or purchased or licensed on a one-time basis (“Purchases”) or on a subscription basis (“Subscriptions”). Purchases and Subscriptions are final and non-refundable. If you sign up for, or are auto-renewed into, a Subscription and subsequently cancel that Subscription before the end of the term for such Subscription, you will not be entitled to a full or prorated refund based on the unused time. Subscriptions will automatically renew for the applicable time period you have selected, and your account will be charged prior to the expiration of the current Subscription. You may cancel automatic renewal by accessing your account page and selecting the subscription you want to modify. Certain Subscriptions may offer a free trial prior to purchase. If you decide to purchase a Subscription prior to the end of the free trial period, your Subscription will start immediately. There may be additional information and/or terms regarding Purchases and/or Subscriptions at the point of sale, and you should review such information and/or terms as you will be bound by them.
You agree that you will pay for all Ditty Products you purchase through the Service, which such Products are offered to you for purchase and sale, and that we may charge your credit card, account,, or other payment method for any Purchases or Subscriptions and for any additional amounts (including any taxes and late fees, if applicable) that may be accrued by or in connection with your account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING US, IF APPLICABLE, WITH A VALID CREDIT CARD OR OTHER PAYMENT METHOD FOR PAYMENT OF ALL FEES. All fees will be billed to the credit card account, or other payment method you designate during the registration process, as applicable, which such payment method is acceptable to Zya. If you want to change your credit card or there is a change in your credit card or payment method status, you must change your information online in the “My Details” section of your account. This may temporarily disrupt your access to the Service while we verify your new payment information.
Prices for Ditty Products, whether via Purchase or Subscription, may change at any time, and the Service does not provide price protection or refunds in the event of a price reduction or promotional offering. If a Ditty Product becomes unavailable following a transaction but prior to download, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Ditty Product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by us. Once you download a Ditty Product, it is your responsibility not to lose, destroy or damage it, and you should back it up as Zya is under no obligation to make such Ditty Products available on the Service for any length of time. Zya may, as a courtesy, store Ditty Products, New Masters and New Compositions on its own servers, but Zya shall have no responsibility for the loss or maintenance of any such data. Notwithstanding anything herein to the contrary, any Ditty Products, New Masters and New Compositions that are available only in streaming format, and not available for download, are not subject to refunds.
Your total price may contain any applicable sales tax, which may be based on the bill-to address and the sales tax rate in effect at the time the Ditty Product is purchased or subscribed to.
13. Use of Purchased or Subscribed Content. The Service and certain Ditty Products may include security technology that limits your use of Ditty Products and, whether or not Ditty Products are limited by security technology, you shall use Ditty Products in compliance with the applicable usage rules established by Zya and its licensors (“Usage Rules”), and any other use of the Ditty Products may constitute a copyright infringement. Any security technology is an inseparable part of the Ditty Products. We reserve the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason, or to attempt or assist another person to do so. We may control and monitor Usage Rules for compliance purposes, and we reserve the right to enforce the Usage Rules without notice to you. You agree not to access the Service by any means other than through software that is provided by us for accessing the Service. You shall not access or attempt to access an account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the Software, for any purposes including obtaining unauthorized access to the Service. Violations of system or network security may result in civil or criminal liability.
14. Submissions to the Service; Third Party Materials; Objectionable Material. The Service offers interactive features that allow you to submit materials on areas of the Service accessible and viewable by the public. You agree that any use by you of such features, including any materials (including, without limitation, New Masters, New Compositions, Videos and any other visual images, graphics, artwork, items similar or related to the foregoing, etc.) (collectively, “Materials”) created and/or submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that you have obtained all necessary rights and licenses, and you agree to provide accurate and complete information, in connection with your submission of any materials on the Service. You hereby grant to Zya and its affiliates, licensors, and licensees an unlimited, perpetual, worldwide, royalty-free, nonexclusive license to use any Materials in any manner whatsoever at the discretion of Zya, as part of the Service, and in relation to Ditty Products, without any compensation or obligation to you. We reserve the right to not post or publish, and to pull down and make unavailable if previously posted, any materials (including New Masters, New Compositions and Videos created by you), and to remove or edit any material, at any time in our sole discretion without notice or liability to you.
We have the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that we in our sole discretion deem appropriate, including, without limitation, termination hereunder.
Certain content, Ditty Products, and services available via the Service may include materials from third parties. We may provide links to third-party websites as a convenience to you. You agree that we are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that we are not in any way responsible for any such use by you.
You understand that by using the Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and we shall have no liability to you for material that may be found to be offensive, indecent, or objectionable. Ditty Product types and descriptions are provided for convenience, and you agree that we do not guarantee their accuracy.
15. Links. The Service may contain hyperlinks to external locations (e.g., other websites) controlled by third parties. These links are provided solely as a convenience to you, and do not imply an endorsement by Zya or that any affiliation exists between Zya and the linked website. You agree that Zya is not responsible for the availability of these external locations, or other content including, without limitation, solicitations thereon or products or services made available thereby. Zya has not necessarily reviewed, and does not necessarily endorse, content at linked websites, and is not responsible for such content or for your use of such content. You acknowledge that some external locations may contain material or communications which are unedited, untrue, or illegal in some jurisdictions or that may be offensive. You agree to access external locations at your own risk. You agree that Zya shall not be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused in any way whatsoever related to any such external location. Any concerns regarding any external location should be directed to its respective website administrator, system operator, or web master.
16. Restrictions on Use. Except as expressly set forth herein, you shall not: (i) reproduce, sell, transfer, distribute, advertise, market, promote, license, synchronize with any medium or otherwise deal in, use, exploit or dispose of the Software, Master, Composition, New Master or New Compositions; (ii) modify, reverse-engineer, decompile or disassemble the Software or the Application; or (iii) cause, permit or authorize others to do any of the foregoing.
18. Your Representations and Warranties. You represent and warrant, each time you use the Service, that: (a) you have the power and authority to enter into and perform your obligations under this Agreement and the terms of this Agreement constitute your legal, valid, binding and enforceable obligation; (b) by clicking the button to accept and install the Software or the Application, you acknowledge that you intended to sign and be legally bound by, and you have signed and are legally bound by, this Agreement; (c) you shall only use the Service in accordance with this Agreement, any other agreement between you and us and Applicable Law; (d) if you are accessing the Service on behalf of another party, you assume all fiduciary, regulatory and other requirements and duties that may apply to your relationship to such party; (e) you shall not introduce, nor permit any person to introduce, into the Software, any code or malicious or hidden mechanisms that would impair the operation of the Service or of our computers or other devices or software, or would permit other users access to the Service, nor shall you use the Service to gain unauthorized access to any computer system; (f) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (g) you are not listed on any U.S. Government list of prohibited or restricted parties.
19. DISCLAIMER OF WARRANTIES BY ZYA. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, CONSTRUCTIVE, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING AND/OR TRADE USAGE. ZYA DOES NOT GUARANTEE OR WARRANT CONTINUOUS, UNINTERRUPTED OR ERROR-FREE ACCESS OR USAGE, OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES SO THE FOREGOING DISCLAIMER MAY NOT BE APPLICABLE IN FULL. THIS SECTION WILL BE ALLOWABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
ZYA DOES NOT MAKE ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, OR MAKE ANY REPRESENTATIONS REGARDING ANY CONTENT, INFORMATION, SERVICES, OR PRODUCTS OBTAINED OR PROVIDED THROUGH OR IN CONJUNCTION WITH THE SERVICE. NEITHER ZYA NOR ITS AFFILIATES OR LICENSORS MAKE ANY GUARANTEE REGARDING THE ACCURACY, CORRECTNESS, TIMELINESS, SEQUENCE, RELIABILITY, OR COMPLETENESS OF ANY CONTENT PROVIDED BY THE SERVICE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. ANY CONTENT OR OTHER INFORMATION OR MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT THE USER’S OWN RISK. THE USER WILL BE SOLELY RESPONSIBLE FOR, AND ASSUMES THE ENTIRE COST OF, ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY DAMAGE OR LOSS DUE TO CONTENT, OR ANY OTHER MATERIAL OR INFORMATION THE USER OBTAINS FROM THE SERVICE. ANY CONTENT UPLOADED OR OTHERWISE SUBMITTED THROUGH THE USE OF THE SERVICE IS UPLOADED AT THE USER’S OWN RISK. THE USER WILL BE SOLELY RESPONSIBLE FOR, AND ASSUMES THE ENTIRE COST OF, ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY DAMAGE OR LOSS DUE TO UPLOADING THROUGH THE USE OF THE SERVICE. ZYA IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE. ANY HYPERLINK TO ANOTHER SITE IS NOT AND DOES NOT IMPLY AN ENDORSEMENT, INVESTIGATION, VERIFICATION OR MONITORING BY ZYA OF ANY INFORMATION ON THAT WEBSITE.
20. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZYA, OUR AFFILIATES, SUBSIDIARIES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, AGENTS AND EMPLOYEES, THIRD PARTY VENDORS, CONTRACTORS, TECHNOLOGY OR CONTENT PROVIDERS (THE “ZYA PARTIES”) HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON FOR DEATH, PERSONAL INJURY OR ANY COSTS, LIABILITIES OR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARLY OR PUNITIVE, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR YOUR OR ANY OTHER PERSON’S USE OF, OR INABILITY TO USE, THE SOFTWARE OR THE APPLICATION. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON STATUTE OR ARISING IN CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), AND REGARDLESS OF WHETHER ANY ZYA PARTY KNOWS OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT AND WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF ZYA UNDER THIS AGREEMENT AND WITH RESPECT TO THE SOFTWARE OR THE APPLICATION SHALL NOT EXCEED THE AMOUNT OF THE FEE RECEIVED FROM YOU BY ZYA IN CONNECTION WITH YOUR USE OF THE SOFTWARE OR THE APPLICATION.
IN THE EVENT THAT THE APPLE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND TO YOU THE PURCHASE PRICE, IF ANY, FOR THE APPLE APPLICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLE APPLICATION, AND, AS BETWEEN APPLE AND ZYA, ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APPLE APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY WILL BE ZYA’S RESPONSIBILITY. IN ADDITION, YOU ACKNOWLEDGE THAT, WITH RESPECT TO THE APPLE APPLICATION, AS BETWEEN APPLE AND ZYA, ZYA IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS BY YOU OR ANY THIRD PARTY RELATING TO THE APPLE APPLICATION OR YOUR POSSESSION AND/OR USE OF THE APPLE APPLICATION, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APPLE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
IN THE EVENT THAT THE GOOGLE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY GOOGLE, AND GOOGLE WILL REFUND TO YOU THE PURCHASE PRICE, IF ANY, FOR THE GOOGLE APPLICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE GOOGLE APPLICATION, AND, AS BETWEEN GOOGLE AND ZYA, ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE GOOGLE APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY WILL BE ZYA’S RESPONSIBILITY. IN ADDITION, YOU ACKNOWLEDGE THAT, WITH RESPECT TO THE GOOGLE APPLICATION, AS BETWEEN GOOGLE AND ZYA, ZYA IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS BY YOU OR ANY THIRD PARTY RELATING TO THE GOOGLE APPLICATION OR YOUR POSSESSION AND/OR USE OF THE GOOGLE APPLICATION, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE GOOGLE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
21. Indemnification. You agree to indemnify and hold Zya harmless and, at Zya’s request, defend Zya and the Zya Parties and their respective parents, subsidiaries, affiliates, partners, licensors, licensees, agents, employees, directors, officers, shareholders, members, and other owners, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, penalties, settlements, costs and expenses (including reasonable attorney’s fees and costs) (hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of, are based on, or relate to: (1) your use of the Service; (2) any third-party claim, including, without limitation, copyright and other intellectual property claims, arising out of or related to the New Masters, New Compositions, Videos, any other Materials, or any songs or sound recordings created by you using the Service, including, but not limited to, your use, or use by anyone using your computer or mobile device, of a Master or Composition in a manner prohibited by the Service or this Agreement; (3) use of the Service by anyone using your computer, mobile device, or account; (4) a violation of this Agreement by you or anyone using your computer, mobile device, or account; (5) any misrepresentation of any information, representation or warranty, or breach of this Agreement or any other covenant or agreement; or (6) any violation of Applicable Law. If any third party brings a claim, lawsuit, or other proceeding(s) against Zya or any Zya Party based on your conduct or use of the Service or that of someone using your computer, mobile device, or account, you agree to compensate Zya and all Zya Parties (including their respective officers, directors, employees and agents) for any and all Losses in connection with any such claim, lawsuit or proceeding. You may not approve or disapprove the settlement or disposition of any such claim, lawsuit or proceeding without the prior written consent of Zya, which consent will not be unreasonably withheld or delayed.
You acknowledge that, in the event of any third party claim that the Apple Application or your possession and use of the Apple Application infringes that third party’s intellectual property rights, as between Apple and Zya, Zya, not Apple, will be responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claim. In addition, you acknowledge that, in the event of any third party claim that the Google Application or your possession and use of the Google Application infringes that third party’s intellectual property rights, as between Google and Zya, Zya, not Google, will be responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claim.
22. Independent Investigation. Zya reserves the right to investigate suspected violations of the terms and conditions of this Agreement whenever Zya becomes aware of possible violations, including, without limitation, misuse of any materials. Such an investigation may include gathering information from a user of the Service and a complaining party and reviewing materials on Zya’s servers and systems. During an investigation, Zya may remove any and all disputed material from Zya’s servers and systems. If Zya believes, in its sole discretion, that a violation of the terms or conditions of this Agreement has occurred, Zya may take any action it deems appropriate under the circumstances known to it, which may include removal of material from Zya’s servers and systems, warnings, and/or suspension or termination of a user’s access to the Zya Website or a user’s Zya account. Violations also could subject users to criminal or civil liability.
a) “Composition” shall mean a musical work, as such term is interpreted under the United States Copyright Act of 1976, as amended.
b) “Digital Master” shall mean a multi-track musical sound recording in digital format embodying a Composition.
c) “Master Owner” shall mean the authorized licensor of rights in and to a Digital Master from which the New Master was created.
d) “Composition Owner” shall mean the owner and/or administrator of the Composition from which the New Composition is derived.
e) “Ditty Platform” shall mean the integrated architecture of software, applications and hardware which enable Zya to deliver music-related, copyright-protected content to a wide range of web-enabled devices including but not limited to desktop, laptop, netbook, tablet and smartphone computing and mobile devices. It is inclusive of both software, applications and hardware under Zya’s direct control as well as third-party solutions which power and/or enable delivery of its products and services and communicate with servers under Zya’s control as well as those hosted and operated by third parties. The Ditty Platform utilizes a distributed architecture and in some instances consists of embeddable widgets which reside on third-party web pages and blogs and contain code which enables the delivery of Zya, other Zya related, and/or “Zya” branded content to these locations.
f) “Ditty Products” shall mean all functionality and/or content available for use and/or purchase in connection with the Ditty Platform.
g) “New Composition” shall mean a derivative Composition created by you based, in part, on a Composition which may include new lyrics.
h) “New Master” shall mean a Digital Master embodying an original sound recording created by the Software, which incorporates a Master.
i) “Territory” shall mean the universe.
j) “Video” shall mean a video embodying a New Master and New Composition created by you using the Software.
25. Jurisdictional Issues/Governing Law/Dispute Resolution/Arbitration.
a) The Service is controlled and operated by Zya from within the United States of America. Zya makes no representations or warranties that the content or materials of the Service are appropriate or lawful in any foreign countries, or that any items offered for sale through links on the Service will be available outside the United States. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use or export or re-export any content downloaded from the Service or any copy or adaptation of such content, in violation of any applicable laws or regulations, including, without limitation, United States export laws and regulations
b) Our goal is to provide you with a neutral and cost-effective means of resolving disputes quickly. Thus, for any claim related to this Agreement or our Service where the total amount sought: (i) is equal to or more than $10,000 USD, you may; or (ii) is less than $10,000 USD, you must, initiate dispute proceedings by completing the Notice of Dispute Form available at www.zyamusic.com/help/disputenotice. Zya may offer to settle the claim, provided however that if the dispute is not resolved within 30 days from the date of Zya’s offer to settle or Zya’s receipt of the Notice of Dispute Form (whichever is later), you may invoke binding arbitration by filing a separate Demand for Arbitration available at www.zyamusic.com/help/arbitrationdemand. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, in person, by telephone, online, or based solely on written submissions; (b) any in-person arbitration will take place in the county in which the city or town you have entered as your residence sits (and if neither is applicable, then the arbitration shall take place in Los Angeles County, California); (c) either party may bring a claim in small claims court in lieu of arbitration; (d) the ADR provider may award any form of individual relief; (e) Zya will pay all costs for non-frivolous claims; (f) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (g) Zya may not seek reimbursement of its attorney’s fees in connection with such arbitration; (h) in the event you receive an arbitration award greater than Zya’s last written settlement offer, Zya will pay a ten thousand U.S. Dollar ($10,000.00 USD) minimum recovery and twice the amount of the your attorney’s fees; (i) claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You hereby agree that for any dispute or claim that is less than $10,000 USD, you waive any right to a trial (by judge or jury), you waive any right to participate as a member of a class in a class action or similar proceeding, and you will abide by the dispute resolution mechanism in this Section 25(b).
c) The formation, construction and interpretation of this Agreement shall in all respects be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any principles of conflicts of laws. This Agreement shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Agreement. For any dispute that is equal to or more than $10,000 and is not resolved or arbitrated under Section 25(b) of this Agreement, it is hereby agreed that any action at law or in equity arising under this Agreement and/or your use of the Service shall be finally adjudicated or determined in any court or courts of the State of California, or of the United States of America, in Los Angeles County, California, and the parties hereto hereby submit generally and unconditionally to the personal and exclusive jurisdiction and venue of these courts in respect to any such matter, and consent to service of process by any means authorized by California law.
d) All claims you bring against Zya must be resolved in accordance with this Section 25. All claims filed or brought contrary to this Section 25 shall be considered improperly filed and a breach of this Agreement. Should either party file a claim contrary to this Section 25, the other party may recover attorneys’ fees and costs up to ten thousand U.S. Dollars ($10,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
26. Third Party Beneficiaries. To the extent the Software contains Content provided by third parties or are otherwise contributed to by third parties, such third parties shall be considered third party beneficiaries of this Agreement. In addition, and without limiting the generality of the foregoing, with respect to your use of the Apple Application, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
27. Acceptance of Electronic Form and Other Terms. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and lack of signing or other form of electronic execution by the parties hereto. You agree to abide by the terms and conditions of this Agreement and any additional terms, conditions, rules, or procedures imposed by Zya or by its licensors in connection with Content, software, or services available on, through or in connection with the Service.
28. Assignment; Waiver. We are entitled to freely assign, delegate, subcontract, sublicense or otherwise transfer any of our rights and obligations under this Agreement to any third party. You may not assign, sublicense, delegate, subcontract or otherwise transfer your rights, duties and obligations under this Agreement to a third party without our prior written consent. Any instrument purporting to make an assignment or other transfer in violation of this provision shall be null and void. Any forbearance or delay on the part of either party hereto in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence.
29. Termination. We may terminate this Agreement or cease providing the Service, at any time, with or without cause, and with or without notice to you. Further, if you fail, or Zya suspects that you have failed, to comply with any of the provisions of this Agreement, then in addition to Zya’s other rights and remedies under this Agreement, Zya may, at its sole discretion and without notice to you, do any of the following: (i) terminate this Agreement and/or your account and you will remain liable for all amounts due under your account up and through the date of termination; and/or (ii) terminate the licenses to the Software or the Application, and/or preclude access to the Service. You may terminate this Agreement by cancelling your account. Sections 2 and 6 through 36 shall survive the termination of this Agreement. All license rights granted to you shall immediately terminate upon termination of this Agreement. Upon termination of this Agreement, you shall: (a) cease all use of the Service; (b) pay all amounts due and owing to Zya as of the date of termination; and (c) not be entitled to any refund or credit of fees paid or payable hereunder.
30. Amendments. Zya reserves the right to automatically amend this Agreement at any time by posting the amended terms and conditions to this “End User License Agreement” section of the Service. Such amendments will be effective when posted.
31. Acts of God. Zya shall be excused from its obligations for any period to the extent that Zya is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s), or request(s) prove(s) to be invalid), Internet or other communications failure, equipment failure, earthquake, war, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal) labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, foreign or domestic court order, third party non-performance (including the acts or omissions of any suppliers, agents, or subcontractors) or any other cause beyond Zya’s reasonable control affecting production or delivery in any manner, including failure or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines or other equipment, whether electronic or otherwise.
32. Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, the remaining portion hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provisions valid and enforceable.
33. Headings. Division of this Agreement into sections and the use of headings is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement, or any provision hereof.
35. Copyright Compliance. Zya respects the intellectual property of others, and we ask that our users do the same. If you have a good-faith reason to believe that material on the Service infringes a copyright that you own, or if your intellectual property rights have been otherwise violated by material posted on the Service, then you may notify Zya using the procedures set forth below.
Send your notice of infringement to our designated agent:
Attention: Business and Legal Affairs
24003-A Ventura Boulevard
Calabasas, CA 91302
Your notice must be in writing and include the following information:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
· A description of the copyrighted work that is alleged to have been infringed, including the electronic location, such as the URL (i.e., the website address), where the copyrighted work exists, or a copy of the copyrighted work;
· An identification of the URL web address on the Website or other specific location where the allegedly infringing material is located;
· The address, telephone number, and email address of the notifying party;
· A statement by the notifying party that it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
· A statement by the notifying party, made under penalty of perjury, that the above information in the notice is accurate and that the notifying party is the copyright owner.
WARNING: IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE LIABLE FOR DAMAGES, INCLUDING ATTORNEY’S FEES, INCURRED BY A COPYRIGHT OWNER, ALLEGED INFRINGER, OR ZYA AS A RESULT OF ZYA’S RELIANCE ON THE MISREPRESENTATION.
Once we receive this information, Zya may expeditiously remove or block access to the allegedly infringing material, and notify the user who posted the material that we have taken such action. If you, as the user, receive a notice that material has been blocked, and believe that this material was removed by mistake or misidentification, you may submit a written counter-notification to our designated agent which must include:
· A physical or electronic signature;
· Identification of the material that has been removed or to which access has been disabled and the location on the Service at which the material appeared before it was removed or access to it was disabled;
· A statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
· Your name, physical address, and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
36. Disclaimer. All Zya-developed names, characters, and descriptions appearing in the Service are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.
37. Miscellaneous. The rights and remedies of Zya hereunder are cumulative and are in addition to, and not in lieu of, all rights and remedies available at law and in equity.
38. Contact Us. If you have any questions, complaints or claims with respect to the Service, or the Application, please contact us at:
Attention: Business and Legal Affairs
24003-A Ventura Boulevard
Calabasas, CA 91302