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Terms of Use

TERMS AND CONDITIONS OF USE

 

Last Update:  August 4, 2015

 

Welcome to BwayTunes.com.  Bwaytunes.com, LLC and/ or its affiliates (“BwayTunes”) are committed to providing an excellent user experience when you visit BwayTunes.  In order to provide this website and our digital music services to you, you agree to be legally bound by the following terms and conditions (the “Terms”).

 

By using BwayTunes, you agree to these conditions.  Please read them carefully.

 

You are encouraged to review these Terms on a regular basis to keep yourself informed of any changes.

 

1 DEFINITIONS

“Audio Downloads” means a non-expiring complete digital copy of a Sound Recording made available to end users;

“Content” means all information, text, graphics, logos, photographs, images, illustrations, audio, video, data or other materials or content, available from the Services, whether posted publicly or transmitted privately and including, without limitation, Audio Downloads, Streams, samples, Previews, artwork and any associated digital rights management technology;

“Preview” means a portion of a song or video, or in some cases, an entire song or video that the user can play (and, if applicable, view) directly from and while the user is logged on to the Services on a promotional basis at no cost to the user;

“Services” means the Content distribution services provided by BwayTunes pursuant to these Terms;

“Sound Recording” means an audio-only embodiment of performances of musical compositions or spoken-word performances that have been provided to you by BwayTunes through your use of the Services;

“Stream” or “Streaming” means the single digital transmission of a Sound Recording, or any part thereof, via the Internet, which transmission is contemporaneous with the end user being able to hear the recording embodied therein;

 

2 ELECTRONIC COMMUNICATIONS

When you use any BwayTunes Service, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site or through the other BwayTunes Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

3 ACCESSING BWAYTUNES’ SERVICES

3.1 Your use of the Services is expressly conditional on your compliance with and acceptance of these Terms. If you do not agree to be bound by these Terms or any modifications thereto, your only recourse is to immediately stop using the Services.

3.2 Services operated for third parties by BwayTunes may also have additional terms to which you will be bound. It is your responsibility to read and understand any Terms that apply to your use of their websites and services.

3.3 BwayTunes reserves the right, in its sole discretion, to change, modify, add, or delete portions of these Terms at any time without further notice. If we do this, we will post the changes to these Terms on this page and will indicate the effective date at the top. If you do not agree to (or cannot comply with) the Terms as amended, your only remedy is to stop using the Services. You are responsible for regularly reviewing these Terms so that you will be apprised of any changes. Your continued use of the Services after any such changes constitutes your acceptance of the new Terms.

 

4 THE SERVICES

4.1 Subject to the provisions of these Terms and any other guidelines notified to you by BwayTunes, as amended from time to time, you may use the Services only; (i) as a digital media download, upload, streaming and storage service designed to enable you to purchase, upload, store and play legally acquired digital media; or (ii) to receive information made available by BwayTunes. The Services are for your own personal and non-commercial use and you are not authorized to make copies of any downloads or streams other than for personal use to the extent permitted by law, nor to otherwise distribute copyright protected digital media. BwayTunes may at any time limit the number of devices that you may access the Services from simultaneously. You assume all risk arising from your use of the Services. BwayTunes may discontinue any aspect of the Services in its sole discretion without notice to you.

4.2 The Services are for personal use by individual end users only and may not be accessed, used, re-sold, or licensed for commercial gain. 

4.3 The Services may contain links to third party websites or services. You acknowledge and agree that BwayTunes is not responsible or liable for: (i) the availability or accuracy of such websites or services; or (ii) the content, products, or services on or available from such websites or services. Links to such websites or services do not imply any endorsement by BwayTunes of such websites or services or the content, products, or services available from them. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or services.

 

5 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 BwayTunes will not be liable to you for content that may be found to be offensive, indecent, or objectionable. BwayTunes does not guarantee the accuracy of any descriptions provided on its Services.

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 or is otherwise objectionable.

 

6 CHILD SUPERVISION

BwayTunes is concerned about the safety and privacy of its users, particularly children. Parents who wish to allow their children access to and use of the Services should supervise such access and use. It is your responsibility to determine which if any portions of the Services are suitable for your child to access.

 

7 AGE RESTRICTION TO REGISTER FOR SERVICES

7.1 You must be at least 18 years of age to agree to and enter into a contract on your own behalf and to register for use of the Services. If you are under 18 but at least 13 years of age, you must present these Terms to your parent or legal guardian, and he or she may consent on your behalf.

7.2 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 (ii) you are at least 18 years old, either entering into this contract for yourself or entering on behalf of your child or a child in your legal care aged 13 or over.

7.3 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 Services, including all financial charges and legal liability incurred. If you do not agree to (or cannot comply with) any of these Terms, do not register and do not attempt to access the Service.

 

8 PRIVACY POLICY

BwayTunes' privacy policies explain how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that BwayTunes can use such data in accordance with our privacy policies.

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.

We provide information to help copyright holders manage their intellectual property online. If you think somebody is violating your copyrights and want to notify us, you may do so at privacy@bwaytunes.com

 

9 USER ACCOUNT, PASSWORD AND SECURITY

9.1 If a particular Service requires you to open an account you will complete a registration process by providing certain information and registering a username and password (“Credentials”) for use with that Service. You are responsible for maintaining the confidentiality of your Credentials. You are not authorized to share your Credentials with any other person. You may have a credit card or other payment method stored with BwayTunes and if your Credentials are used by a third party (whether or not authorized) the third party will be able to make purchases with that payment method. You will be fully liable for any actions made with your Credentials. BwayTunes advises you to change your password frequently and to always keep it secure.

9.2 You agree to immediately notify us of any unauthorized use of your Credentials or any other breach of security. In no event will BwayTunes be liable for any indirect or consequential loss or damage resulting from the disclosure of your Credentials. If you believe someone has accessed any Service using your Credentials without your authorization, it is your responsibility to set up a new password or contact BwayTunes’ customer services department to delete your account.

 

10 USAGE RULES

10.1 You acknowledge that all Content is the sole responsibility of the person or entity from whom such Content originated. We do not control or 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. BwayTunes will not be liable in any way for any Content or for any loss or damage of any kind resulting from the use of any Content transmitted via the Services and you agree to bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content.

10.2 Most Content sold on BwayTunes is DRM-free. However, you understand that some of the Content includes a security framework using technology that protects digital information and limits your usage of the Content to certain usage rules established by BwayTunes and its licensors (“Usage Rules”). You agree to comply with such Usage Rules, as further outlined below, and you agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components related to such Usage Rules for any reason whatsoever.

10.3 You may play as many Previews as you like. You may not attempt (or support others’ attempts) to capture, copy, or download a Preview.

10.4 Content Usage Rules.

(i) You are authorized to use the Content only for personal, non-commercial use and any reproduction, redistribution, transmission, transfer, assignment, sale, broadcast, public performance, rental or lending, adaptation, sub license, modification, promotion or other use of the Content, including, without limitation, any use that requires a synchronization license with respect to the underlying musical composition, without the prior written consent of the copyright owner, may be a violation of the law and is expressly prohibited.

(ii) You may not use Content as a musical “ringer” in connection with mobile phone calls.

(iii) Audio Downloads may be purchased individually, collectively as albums, or, in some cases, only in the form of albums.

(iv) Streams may not be captured, saved, copied or stored by any means whatsoever.

(v) All Audio Downloads of Content supplied by Sony Music Entertainment are sold directly by SME Digital LLC.  Other suppliers along the chain are agents of SME Digital LLC.

(vi) The availability and prices of Content are subject to change without notice.

(vii) You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Services or used to administer the Usage Rules, or interfere with, remove or alter any rights management information on the Content.

(viii) The delivery of Content does not transfer to you any commercial or promotional use rights in same.

(ix) Content in the MP3 or AAC format does not contain security technology that limits your usage of such Content and you may use them as reasonably necessary for personal, non-commercial use to the extent permitted by law.

(x) 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. Any security technology, if applicable, is an inseparable part of the Content. The Usage Rules shall govern your rights with respect to the Content. BwayTunes reserves the right to modify the Usage Rules at any time.

10.5 Personal Storage Area.

(i) You may have access, via the My Music or My Account section of the Website or otherwise, to a personal storage area (“PSA”)  for legally acquired digital media, the content of which is your sole responsibility and is held on third party cloud servers and infrastructure not necessarily controlled by BwayTunes, in geographically dispersed locations.

(ii) Purchases from the Services will be delivered to the PSA. You may be allowed to copy such purchases and upload tracks to and from your hard drive into your PSA in the cloud, which will function as a remote hard drive for access at a later date but for which BwayTunes has no obligation to maintain access to. You acknowledge and agree that you should not rely on BwayTunes or the Services for any reason. It is your responsibility to back up and store any files delivered by BwayTunes or uploaded by you to your PSA. You agree to assume all risk for loss of content in your PSA.

(iii) You are reminded that all material uploaded to the PSA should be legally acquired digital content. You are responsible for ensuring the legitimate origin of all contents of the PSA and you must comply with any applicable copyright laws.

(iv) BwayTunes may be required to share aggregated, anonymous PSA usage information with its content licensors and you consent to BwayTunes sharing such usage information.

(v) BwayTunes may, in its sole and absolute discretion, set a streaming, and or bandwidth implementation or other usage limitation on your usage of the PSA (Fair Use Policy).

(vi) You will obtain and maintain any and all necessary licenses and permissions in connection with your use of the PSA. BwayTunes may terminate your access to the PSA at any time without notice and without liability to you.

10.6 Use of the 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, log-in details or other credentials;

(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 Services in any manner that could damage, disable, overburden or impair the Services or interfere with any other party's use and enjoyment of the 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);

(xiii) attempt to gain unauthorized access to any of the Services, other accounts, computer systems or networks connected to the Services through hacking, password mining or any other means.

 

11 TERMINATION

BwayTunes has the right to terminate or suspend your access to any or all of the Services at any time, without notice, for any reason, including without limitation, breach of these Terms. You agree that BwayTunes shall not be liable to you or any third party for any termination of your access to the Services.

 

12 EQUIPMENT

Without limiting any provision herein, BwayTunes makes no warranty that any particular computer, portable device, or other hardware will be compatible with BwayTunes’ Services. It is your sole responsibility to ensure that your playback system(s) will function correctly with the application.

 

13 REFUND POLICY

All sales are final and all charges from those sales are non-refundable. Due to the nature of the Services 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 may be given at the discretion of the management.

 

 

14 INTERNATIONAL USE

14.1 You agree to comply with all applicable laws regarding the transmission of technical data exported from the United Kingdom or the country in which you reside (if different) and with all local laws and rules regarding acceptable use of and conduct on the Internet.

14.2 Content may be restricted by territory. Where required, to conclude the purchase of any such restricted products, you may be required to provide a billing address in the relevant territory or otherwise be identified as a user from that territory. You agree not circumvent any territorial restrictions in place on the Services or provide false billing information.

 

15. USE OF THIRD PARTY SERVICES

15.1 When you use the BwayTunes Software, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile platform provider. Your use of these third party services may be subject to the separate policies, terms of use, and fees of these third parties.

15.2 BwayTunes can use third party services which may require the transmission of personally identifiable information.  In the event that their conditions contradict our terms and conditions, ours shall apply.

 

16 INTELLECTUAL PROPERTY RIGHTS

16.1 The Services and its Content (including without limitation the design, text, graphics and all software and source codes connected with the Services) are protected by copyright, trademarks, patents and other intellectual property rights and laws. 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.

16.2 BwayTunes 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 BwayTunes a world-wide, royalty free, non-exclusive license 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 license shall be terminated when such Content is deleted from the Services.

 

17 INDEMNITY

You agree to indemnify and hold BwayTunes harmless from and against any breach by you of these Terms and any claim or demand brought against BwayTunes 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 BwayTunes in consequence of your breach of these Terms.

 

18 DISCLAIMERS AND LIMITATION OF LIABILITY

18.1 USE OF THE SERVICES IS AT YOUR OWN RISK. THE 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.

18.2 TO THE EXTENT PERMITTED BY LAW, BWAYTUNES WILL NOT BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, OPPORTUNITY, DATA, PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE WEBSITE/SERVICES.

18.3 BWAYTUNES MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT CONTENT WILL BE ACCURATE OR RELIABLE, THAT THE FUNCTIONALITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR ANYTHING ELSE WHICH MAY BE HARMFUL OR DESTRUCTIVE.

18.4 NOTHING IN THESE TERMS SHALL BE CONSTRUED SO AS TO EXCLUDE OR LIMIT THE LIABILITY OF BWAYTUNES FOR DEATH OR PERSONAL INJURY AS A RESULT OF THE NEGLIGENCE OF BWAYTUNES.

18.5 NOTHING IN THESE TERMS SHALL AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.

 

19 SEVERANCE

If any of these Terms 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 shall survive and remain in full force and effect and continue to be binding and enforceable.

 

20 GOVERNING LAW

The laws of the State of New York (USA), notwithstanding any of its conflict of laws rules to the contrary, will govern these Terms, as well as your and our observance of them.

Any dispute or claim relating in any way to your use of any BwayTunes Service, or to any products or services sold or distributed by BwayTunes or through BwayTunes will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.

The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. BwayTunes will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

21 NOTICES OF COPYRIGHT INFRINGEMENT

Notice and Procedure for Making Claims of Copyright Infringement

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the following information to BwayTunes’ legal team:

·     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 you claim has been infringed upon;

·     A description of where the material that you claim is infringing is located on the site, including the product identifier, if applicable;

·     Your address, telephone number, and e-mail address;

·     A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

·     A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

 

BwayTunes’ Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:

 

BwayTunes Legal Team

DMCA Complaints

220 West 98th Street, #5-F

New York, NY 10025 USA

e-mail: privacy@BwayTunes.com

 

Provided by: BwayTunes.com, LLC. Registered office: 220 West 98th Street, #5-F, New York, NY 10025 USA.

 

 


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