EMI terms and conditions for musicheadmp3.com.au
These terms and conditions are current
as at 28 September 2008.
EMI Music Australia Pty Limited (ABN
24 000 070 235) of 98-100 Glover Street, Cremorne NSW 2090, Australia
(“EMI”, “us” or “we”) is committed
to providing an excellent user experience. In order to provide this
website and our digital music services to you, you must agree to be
bound by the following terms and conditions which form a legally binding
contract between EMI and you.
1 ACCEPTANCE OF
TERMS
1.1 Access to our
Website. Your access to and use of www.musicheadmp3.com.au (“the Website”) and any Services
referred to in Clause 2 below, is subject to these terms and conditions.
1.2 Acceptance. You will not use
the Website/Services for any purpose that is unlawful or prohibited
by these terms and conditions. By using the Website/Services you are
fully accepting the terms, conditions and disclaimers contained in this
notice. If you do not accept these terms and conditions you must immediately
stop using the Website/Services.
1.3 Right to Amend Terms. We reserve
the right, at our sole discretion, to change, modify, add, or delete
portions of these terms and conditions at any time without further notice.
If we do this, we will post the changes to these terms and conditions
on this page and will indicate the effective date at the top. If you
do not agree to (or cannot comply with) the terms and conditions as
amended, your only remedy is to stop using the Website/Service. You
are responsible for regularly reviewing these terms and conditions so
that you will be apprised of any changes. Your continued use of the
Website/Services after any such changes constitutes your acceptance
of the new terms and conditions.
2 THE SERVICES
2.1 Services. The Website provides
digital media download and streaming services (“the Services”)
designed to enable you to purchase legal digital media. The Services
are for your own personal and non-commercial use and you are not authorised
to make any copies of any downloads or streams other than for personal
use.
2.2 Our
Agent. We use 7digital Limited to help us provide the Services
to you.
3 OBJECTIONABLE MATERIAL
3.1 Objectionable Material. You
understand that by using the Services, you may encounter content that
may be deemed offensive, indecent, or objectionable, which content may
or may not be identified as having explicit language. Nevertheless,
you agree to use the Service at your sole risk and EMI will not be liable
to you for content that may be found to be offensive, indecent, or objectionable.
EMI does not guarantee the accuracy of any descriptions provided on
the Websites.
4 CHILD SUPERVISION
4.1 Accessing the Websites. We
are concerned about the safety and privacy of our users, particularly
children. Parents who wish to allow their children access to and use
of the Websites should supervise such access and use. It is your responsibility
to determine which if any portions of the Website are suitable for your
child to access.
5 AGE RESTRICTION TO
REGISTER FOR SERVICES
5.1 Registering for the Services.
You must be at least 16 years of age to register for use of the Services
on your own behalf. If you are under 16 but at least 13 years of age,
you must present these terms and conditions to your parent or legal
guardian, and he or she may consent on your behalf.
5.2 Minimum Age. Children under
the age of 13 may not register for the Services, and parents or legal
guardians may not register on their behalf. By registering for the Services,
you represent that: (i) you have read, understood and agree to be bound
by these terms and conditions; and (ii) you are at least 16 years old
and you are entering into this contract for yourself, or you are a parent
or legal guardian entering on behalf of your child or a child in your
legal care aged 13 or over.
5.3 Full Access. If you are a
parent or guardian allowing your child access to the Services you are
allowing your child access to all of the Services. It is therefore your
responsibility to determine which Services are appropriate for your
child. Always use caution when revealing personally identifiable information
about yourself or your children via any of the Services. You are fully
responsible for his or her use of the Website/Services, including all
financial charges and legal liability that he or she may incur. If you
do not agree to (or cannot comply with) any of these terms and conditions,
do not register and do not attempt to access the Service.
6 PRIVACY
POLICY
We recognise that your privacy is very
important to you and that it is your right to control your personal
information. Use of any personal information that you provide to EMI
via this Website is governed by our Privacy Policy which is available
at [Privacy Policy].
7 USER ACCOUNT, PASSWORD AND SECURITY
7.1 Password Security. If a particular
Service requires you to open an account you will be required to complete
the registration process by providing certain information and registering
a username and password for use with that Service. You are responsible
for maintaining the confidentiality of the username and password. You
are fully responsible for any unauthorised person’s use of the Website/Services,
including all financial charges and legal liability that he or she may
incur. We recommend that you change your password from time to time
for additional security. If you believe someone has accessed any Service
using your user name and password without your authorisation, it is
your responsibility to set up a new password.
7.2 Unauthorised Access. You agree
to immediately notify us of any unauthorised use of your password or
account or any other breach of security. In no event will EMI be liable
for any indirect or consequential loss or damage whatsoever resulting
from the disclosure of your username and/or password. You may not use
another person’s account at any time, without the express permission
of the account holder. You agree that we will be entitled to assume
that any person logging into the Website using your username and password
is either you or someone doing so with your permission.
8 USAGE RULES
8.1 Use of Content. All content
included on the Website by EMI (or someone we authorise), including information, text, graphics, logos, photographs, images, moving images, sound,
illustrations and other materials, is either licensed or belongs to
us (“the Content”). We do not endorse the Content and cannot
guarantee the accuracy, integrity or quality of such Content and you
acknowledge that by using the Services you may be exposed to Content
that is offensive and/or indecent.
8.2 Previews. A “Preview”
is a portion of a song or video, or in some cases, an entire song or
video that you can play (and, if applicable, view) directly from and
while you are logged on to the Service on a promotional basis at no
cost to you. You may play as many Previews as you like. You may not
attempt (or support others’ attempts) to capture, copy, or download
a Preview.
8.3 Content Usage Rules.
(i) You are authorised to use the Content
only for personal, non-commercial use, and not for redistribution, transfer,
assignment or sublicense, to the extent permitted by law.
(ii) You may not use Content as a musical
“ringer” in connection with mobile phone calls.
(iii) You agree that you will not attempt
to, or encourage or assist any other person to, interfere with, remove or alter any rights management
information on the Content.
(iv) The delivery of Content does not
transfer to you any commercial or promotional use rights in the Products.
(v) Content in the MP3 or AAC format
does not contain security technology that limits your usage of such
Content and you may use it as reasonably necessary for personal, non-commercial
use.
You agree that your purchase of Content
constitutes your acceptance of and agreement to use such Content solely
in accordance with the Usage Rules, and that any other use of the Content
may constitute a copyright infringement. The Usage Rules shall govern
your rights with respect to the Content. EMI reserves the right to modify
the Usage Rules at any time.
8.4 Use of the Website/Services.
You agree not to:
(i) use the Services to send junk email,
spam, chain letters, pyramid schemes or any other unsolicited messages,
commercial or otherwise;
(ii) post, publish, distribute or disseminate
material or information that is defamatory, infringing, obscene, indecent,
threatening, abusive, harassing or unlawful;
(iii) post, publish, distribute or disseminate
material or information that incites discrimination, hate or violence
towards any person or group on account of their race, religion, disability,
nationality or otherwise;
(iv) threaten, abuse, disrupt, stalk
or otherwise violate the legal rights (including rights of privacy and
publicity) of others;
(v) use any information or material in
any manner that infringes any copyright, trademark, patent or other
proprietary right of any party;
(vi) make available or upload files that
contain a virus, worm, trojan or corrupt data that may damage the operation
of the computer or property of another;
(vii) collect or store personal information
about others, including email addresses;
(viii) advertise or offer to buy or sell
goods or services for any commercial purpose, unless such communication
facility specifically allows such messages;
(ix) impersonate any person or entity
for the purpose of misleading others;
(x) violate any applicable laws or regulations;
(xi) use the Website/Services in any
manner that could damage, disable, overburden or impair the Website/Services
or interfere with any other party's use and enjoyment of the Website/Services;
(xii) post, publish, distribute or disseminate
material or information that you do not have a right to transmit under
any law or under contractual or fiduciary relationships (such as inside
information or confidential information disclosed in the course of employment
or under a confidentiality agreement); and
(xiii) attempt to gain unauthorised access
to any of the Services, other accounts, computer systems or networks
connected to the Website/Services through hacking, password mining or
any other means.
8.5 Monitoring. We have no obligation
to monitor the Services but shall be entitled to review materials posted
to a communications facility and, at our sole discretion, to remove
any material that breaches these terms and conditions or is otherwise
objectionable.
9 TERMINATION
9.1 Termination.
We have the right to terminate your access to any or all of the Services
at any time, without notice, for any reason, including without limitation,
breach of these terms and conditions. We may also at any time, at our
sole discretion, discontinue the Website/Services or any part thereof
without prior notice and you agree that we shall not be liable to you
or any third party for any termination of your access to the Website/Services.
10 EQUIPMENT
10.1 Equipment. Without limiting
any provision herein, EMI makes no warranty that any particular computer,
portable device, or other hardware will be compatible with EMI’s Website/Services.
It is your sole responsibility to ensure that your playback system(s)
will function correctly with the application.
11 REFUND POLICY
11.1 All Sales are Final. All
sales are final and all charges from those sales are non-refundable.
Due to the nature of the service you are not able to cancel any purchases
of downloads after you have confirmed payment. Downloads may not be
returned for any reason unless they are defective. In exceptional circumstances,
refunds are given at the discretion of the management.
12 LINKS TO THIRD PARTY
WEBSITES
12.1 Links on the Websites. The
Website/Services may include links to third party websites that are
controlled and maintained by others. Any link to other websites is not
an endorsement of such websites and you acknowledge and agree that EMI
is not responsible for the content or availability of any such sites.
13
TERRITORIAL RESTRICTIONS
You agree to comply with all applicable
laws regarding the transmission of technical data exported from Australia.
Some of our downloads are restricted by territory and EMI may not control
the necessary rights to authorise the creation, reproduction, processing
or storage, from or to any location outside of Australia. Where required,
to conclude the purchase of any such restricted products, you will be
required to provide an Australian billing address. You agree not to
circumvent any territorial restrictions in place on the Website/ Services
or provide false billing information.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 Intellectual Property. The
Website and its content (including without limitation the Website design,
text, graphics and all software and source codes connected with the
Website and the Services) are protected by copyright, trade marks, patents
and other intellectual property rights and laws. In accessing the Website
you agree that you will access the contents solely for your personal,
non-commercial use. None of the content may be downloaded, copied, reproduced,
transmitted, stored, sold or distributed without the prior written consent
of the copyright holder. This excludes the downloading, copying and/or
printing of pages of the Website for personal, non-commercial home use
only.
14.2 Posted
Material. EMI does not claim ownership of any materials you post,
upload or submit to any publicly accessible area of the Services. However,
by doing so you are granting us a world-wide, perpetual, royalty free,
non-exclusive licence to copy, distribute, transmit, reproduce, publicly
display, edit, translate or publish such Content for as long as you
elect to display such Content via the Services. The licence shall be
terminated when such Content is deleted from the Services.
15 INDEMNITY
You agree to indemnify and hold EMI harmless
from and against any breach by you of these terms and conditions and
any claim or demand brought against EMI by any third party arising out
of your use of the Services and/or any Content submitted, posted or
transmitted through the Services, including without limitation, all
claims, actions, proceedings, losses, liabilities, damages, costs, expenses
(including reasonable legal costs and expenses) howsoever suffered or
incurred by EMI in consequence of your breach of these terms and conditions.
16 DISCLAIMERS AND
LIMITATION OF LIABILITY
Use of the Website/Services is at your
own risk. The Website/Services are provided on an "AS IS"
and "AS AVAILABLE" basis without any representation or endorsement
made and without warranty of any kind whether express or implied, including
but not limited to the implied warranties of satisfactory quality, fitness
for a particular purpose, non-infringement, compatibility, security
and accuracy.
To the extent permitted by law, EMI will
not be liable for any indirect or consequential loss or damage whatsoever,
or any loss of business, opportunity, data or profits, arising out of
or in connection with the use of the Website/Services.
EMI makes no warranty that the Website/Services
will meet your requirements, that Content will be accurate or reliable,
that the functionality of the Website/Services will be uninterrupted
or error free, that defects will be corrected or that the Website/Services
or the server that makes them available are free of viruses or anything
else which may be harmful or destructive.
If any condition or warranty is implied
into these term and conditions by law and cannot be excluded, and we
are able to limit your remedy for breach of such a condition or warranty,
then our liability for any breach of the condition or warranty is limited
to one or more of the following at our discretion:
- in the case of goods, the
replacement of the goods or the supply of equivalent goods, the repair
of the goods, the payment of the reasonable cost of replacing the goods
or of acquiring equivalent goods, or the payment of the reasonable cost
of having the goods repaired; or
- in the case of services, the
supplying of the services again, or the payment of reasonable costs
of having the services supplied again.
Nothing in these terms and conditions
shall be construed so as to exclude or limit the liability of EMI for
fraudulent misrepresentation or death or personal injury as a result
of the negligence of EMI.
Nothing in these terms and conditions
shall affect your statutory rights as a consumer.
17 SEVERANCE
If any of these terms and conditions
should be determined to be invalid, illegal or unenforceable for any
reason by any court of competent jurisdiction then such term or condition
shall be severed and the remaining terms and conditions shall survive
and remain in full force and effect and continue to be binding and enforceable.
18 GOVERNING LAW
These terms and conditions shall be governed
by and construed in accordance with the laws of New South Wales, Australia
and you hereby submit to the exclusive jurisdiction of the courts of
New South Wales, Australia.
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