TERMS OF USE
ShapeMix, LLC and/or its affiliates (collectively “ShapeMix”) owns and operates web site properties located at www.shapemix.com and elsewhere on the Internet (collectively referred to as the “Sites”), and also provides a music remix software application currently known as “ShapeMix” for use on computers, handsets and other devices (the “App”), as well as a proprietary music player (the “Player”), and one or more related social media widgets (the Sites, App and Player, together with any other products and services provided by ShapeMix in connection therewith, whether through the Sites or through third party sites or services by or on behalf of ShapeMix, are collectively referred to as the “ShapeMix Service”). Through the ShapeMix Service you can remix music and interact with a community of users and visitors, browsing, and sharing content you and others remix using the ShapeMix Service.
1. YOUR ACCEPTANCE
THESE TERMS AND CONDITIONS OF SERVICE (the “Terms”) ARE A LEGAL AND BINDING AGREEMENT BETWEEN YOU (“YOU”, “YOUR” OR “USER”) AND SHAPEMIX governing your access and use of the ShapeMix Service whether made available by way of the App, Player, Sites or through third party sites or services (including social networking sites), or any mobile versions thereof. Please review the Terms fully before you continue to use the ShapeMix Service. By using the ShapeMix Service, you agree to be bound by the Terms. You shall also be subject to any additional terms posted with respect to individual elements of the ShapeMix Service. Please review the ShapeMix Privacy Policy (http://www.shapemix.com/privacy), which also governs your use of the ShapeMix Service, to understand ShapeMix’s practices. If you disagree with the Terms or Privacy Policy, please immediately discontinue using the ShapeMix Service. ShapeMix reserves the right to change the Terms and/or or Privacy Policy at any time without prior notice. Your continued access or use of the ShapeMix Service after such changes indicates your acceptance of the Terms and Privacy Policy as modified. It is your responsibility to review the Terms and Privacy Policy regularly. The Terms were last updated on November __, 2010.
Your use of the ShapeMix Service and browsing of the Sites is at your risk. If you are dissatisfied with any of the materials contained in the Sites and/or the App, with the quality of the ShapeMix Service, or with these Terms, your sole and exclusive remedy is to discontinue accessing and using the ShapeMix Service.
2. AGE REQUIREMENTS
You must be at least 18 years of age or older to use the ShapeMix Service and by using the ShapeMix Service you represent that you meet such age requirements and are competent to enter into the agreement specified in the Terms (and to comply with all obligations therein). If you do not meet the minimum age requirements, please do not use the ShapeMix Service.
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: The ShapeMix Service is not for persons under the age of 13. If you are under 13 years of age, then please do not use the ShapeMix Service.
3. REGISTRATION, USER ACCOUNT, PASSWORD, AND SECURITY
3.1 In order to utilize certain functionality of the ShapeMix Service, you must complete a registration process. As a registered user of the ShapeMix Service, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the ShapeMix Service registration form (such information being the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. Upon completing the registration process, you will choose a password and a user name. You may not use a user name that is used by someone else, is vulgar or otherwise offensive (as solely determined by ShapeMix), infringes any trademark or other proprietary rights of others, or is used in any way that violates these Terms. You are responsible for maintaining the confidentiality of the password and user name, and you are fully responsible for all activities that occur under your password or user name. You agree to (i) immediately notify ShapeMix of any unauthorized use of your password or user name or any other breach of security; (ii) exit from your account at the end of each session; and (iii) defend, indemnify, and hold harmless ShapeMix from any loss or damage arising from unauthorized use of your password or user name. You may not use anyone else’s account at any time. Your account is personal to you, and you may not transfer or make available your account to others. Any distribution by you of your account or related information may result in cancellation of your account.
3.2 You acknowledge, consent and agree that ShapeMix may access, preserve and disclose your account information and any Submitted Content (hereafter defined) if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to a claim that any Submitted Content violates the rights of third parties; (d) to respond to your requests for customer service; or (e) protect the rights, business interests, property or personal safety of ShapeMix, its Users and the public.
3.3 You further acknowledge that from time to time the App (or certain elements of the ShapeMix Service) may reside on or be accessible from third party sites or services and that in order to access some features of the ShapeMix Service, including certain content, you may have to create an account (or enter already established login credentials) with such third party sites or services.
4. FEATURES OF THE SHAPEMIX SERVICE
4.1 The App. The App contains an interface that includes a set of tools and features to remix certain audio recordings supplied by ShapeMix and to share such remixed as permitted by the intended features of the App and the Terms.
4.2 The Player. The Player is a proprietary music software player that enables playback of recordings via streaming formats.
4.3 ShapeMix Content. The ShapeMix Service is owned and operated by ShapeMix. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the ShapeMix Service provided by ShapeMix, including certain recordings and musical compositions (“ShapeMix Content”) are the valuable proprietary and intellectual property of ShapeMix or its licensors.
4.4 Stems. From time to time (for periods of time determined by ShapeMix), ShapeMix may make available for use within the App certain content licensed from third parties consisting of digital multi-track stem files (“Stems”) containing recordings (“Recordings”) of (i) musical performances by certain performers (each an “Artist”) of certain musical compositions (“Songs”) or (ii) other non-musical sounds. The copyright in and to each particular Recording authorized for use within the App is owned by the applicable record company, Artist or other person (hereafter “Label”) from whom such Recording is licensed by ShapeMix. The copyright in and to each particular Song authorized for use within the App is owned by the applicable music publisher and/or songwriter (hereafter, “Publisher”) from whom such Song is licensed by ShapeMix.
4.5 Remixed Tracks. The ShapeMix Service enables Users, within the App (i) to manipulate, adapt, alter and/or remix certain ShapeMix Content, Stems, Recordings, and/or Songs, as applicable, as permitted by the intended functionality of the ShapeMix Service and these Terms (i.e., by remixing the original Stems), resulting in the creation of a new audio work (each, a “Remixed Track”) and (ii) to share such Remixed Tracks via the App, Player, Sites, services and/or certain third party sites or social media platforms (including, without limitation, by making your Remixed Tracks available through permitted third party sites using techniques such as linking and embedding), as permitted by the intended functionality of the ShapeMix Service and these Terms.
4.6 User Review, Commentary and Ranking. Certain features of the ShapeMix Service may permit you to review, comment on and/or rank content (or other elements included in the ShapeMix Service). You are solely responsible for your commentary, rankings and/or reviews, which must adhere to these Terms.
5. ACCESSING THE SHAPEMIX SERVICE
5.1 Access. ShapeMix grants you permission to access and use the ShapeMix Service as set forth in these Terms, provided that: (i) you use the ShapeMix Service solely for your personal, private, noncommercial use; (ii) you do not reproduce, publicly display, publicly perform, or distribute any part of the ShapeMix Service, including any materials obtained from the ShapeMix Service, in any medium without ShapeMix’s prior written authorization, or as expressly authorized in these Terms; (iii) you do not alter or modify any part of the ShapeMix Service other than as may be reasonably necessary to use the ShapeMix Service for its intended purposes and as permitted by the Terms; (iv) you do not engage in any of the prohibited uses described in Section 10 below; and (v) you otherwise fully comply with these Terms.
5.2 Territory. The ShapeMix Service is controlled and offered by ShapeMix from its facilities in the United States and is intended for use by Users who reside in the United States. ShapeMix makes no representations that the ShapeMix Service is appropriate or available for use in other locations, and access to the ShapeMix Service from territories where any content or features that are available on or through the ShapeMix Service may be illegal is prohibited. Those who access or use the ShapeMix Service from outside the United States do so at their own risk and are solely responsible for compliance with local laws.
5.3 Fees. Certain features and/or functions of the ShapeMix Service may now or in the future have fees associated with them, including, without limitation, license fees to download the App and/or certain Stems or ShapeMix Content. When you use a function or initiate any action that has a fee, you will have an opportunity to review and accept the fees that you will be charged based on ShapeMix’s then stated fees, which ShapeMix may change from time to time in its sole discretion (ShapeMix reserves the right to set prices and availability of products/services, which are subject to change at any time). In that regard, ShapeMix may choose to temporarily change the fees for ShapeMix’s services for promotional events or new services without liability to Users who have already paid higher fees for the same services, and such changes are effective immediately upon posting via the ShapeMix Service. Unless otherwise stated, all fees are in U.S. Dollars.
5.4 Payment and Billing. You agree to pay for all purchases you make through the ShapeMix Service (e.g., licenses for the App, Stems, optional services, virtual goods, and/or upgrades). Payment for purchases is handled via third-party secure encryption technology and carried out by a stored value (gift card), credit or debit card, PayPal, or other similar accounts (each referred to herein as “Payment Information”). When you provide Payment Information to ShapeMix (or its designated licensees or subcontractors), you represent and warrant that you are the authorized user of the Payment Information that is used to pay such charges. You must promptly notify ShapeMix of any changes to your Payment Information. You are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including your family or friends.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Rights to ShapeMix Content, Stems, Recordings and Songs. The ShapeMix Content, Stems, Recordings and Songs are protected by any and all applicable international, federal, and state laws, rules, orders and regulations relating to intellectual or proprietary property, including, but not limited to, patent, copyright, trademark and trade secret. You agree not to reproduce, distribute, display, publicly perform, revise, create derivatives of, copy, publish, sell, license, or edit any such content, recordings, musical compositions, information or software except as permitted by the intended functionality of the ShapeMix Service and these Terms. Any attempt to download, print, publish, reproduce, publicly perform, or maintain a significant portion of the content, information, recordings, musical compositions, or software from the ShapeMix Service in violation of these Terms, to distribute copies of such content, information, recordings, musical compositions, or software (including the App), or to otherwise exploit the content, information, recordings, musical compositions, or software in violation of the intellectual property or proprietary rights of others is strictly prohibited by these Terms.
6.2 Remixed Tracks.
6.2.1 To the extent that the creation of one or more Remixed Tracks by a User could be determined to have resulted in the creation of a derivative work in a Song under copyright laws (each, a “Remixed Song”), then all rights in and to any such Remixed Song shall be owned by the Publisher(s) who owned such original Song(s) and to the extent necessary the User hereby assigns all rights in and to the Remixed Song(s) to such Publisher(s) throughout the world for the full life of copyright and any and all extensions and renewals thereof. Further, the writer(s) and author(s) of the original Song(s) will be registered and credited as the sole writer(s) and author(s) of any such Remixed Song(s) and Publisher(s) as the owner of the Remixed Song(s). The User will not acquire a copyright interest in any Remixed Song(s) and/or Song(s) by virtue of creating Remixed Tracks. If requested by Publisher(s), the User shall complete and sign a formal assignment of copyright to give effect to the foregoing. Users will not exploit a Remixed Song (other than as permitted by the intended functionality of the ShapeMix Service and these Terms) without seeking the prior approval of Publisher(s). Publisher(s) will not exploit a Remixed Song without seeking the prior approval of the applicable User.
6.2.2 To the extent that the creation of Remixed Tracks by a User could be determined to have resulted in the creation of a derivative work in a Recording under copyright laws (each, a “Remixed Recording”), then all rights in and to any such Remixed Recording shall be owned by the Label(s) who owned such original Recording(s) and to the extent necessary the User hereby assigns all rights in and to the Remixed Recording to such Label(s) throughout the world for the full life of copyright and any and all extensions and renewals thereof. Further, the author(s) of the original Recording(s) will be registered and credited as the sole author(s) of any such Remixed Recording and Label(s) as the owner of the Remixed Recording. The User will not acquire a copyright interest in any Remixed Recording and/or Recording(s) by virtue of creating Remixed Tracks. If requested by Label(s), the User shall complete and sign a formal assignment of copyright to give effect to the foregoing. Users will not exploit a Remixed Recording (other than as permitted by the intended functionality of the ShapeMix Service and these Terms) without seeking the prior approval of Label(s). Label(s) will not exploit a Remixed Recording without seeking the prior approval of the applicable User.
7. USE OF THE APP
7.1 Limited License. All aspects of the ShapeMix Service, including the App, Player ShapeMix Content and Stems, are licensed, not sold or otherwise transferred to you. Subject to your acceptance of, and ongoing compliance with, these Terms, ShapeMix hereby grants you a limited, non-transferable, non-sublicensable, revocable license to (i) download, make a copy and use the App on an authorized device that you own or control; (ii) access and use ShapeMix Content, Stems, Recordings and Songs through the ShapeMix Service as permitted by these Terms and the intended features of the ShapeMix Service, for your own personal enjoyment; (iii) use the App to create Remixed Tracks; and (iv) access, use, and share Remixed Tracks, subject to and consistent with these Terms and the intended features of the ShapeMix Service. You may not rent, lease, lend, sell, reproduce, redistribute or sublicense the App (or the ShapeMix Content or Stems). You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof, including the Stems (except as and only to the extent that any foregoing restriction is prohibited by applicable law).
7.2 Upgrades. These Terms will govern any upgrades provided by ShapeMix that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
7.3 Consent to Use of Data. You agree that ShapeMix may collect and use technical data and related information, including, but not limited to, technical information about your handset, device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the App. ShapeMix may use and disclose this and other information you provide for a variety of purposes. To learn more about ShapeMix’s policies with respect to the collection, use and disclosure of information, please review the Privacy Policy.
7.4 Responsible Use. You are solely responsible for your use of the App, and you should use common sense and exercise good judgment concerning such use. Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind: (i) activities that involve frequent and repetitive movements, and prolonged screen viewing time, may lead to certain types of repetitive strain injuries, such as carpal tunnel syndrome, tendonitis, and eye strain, and when using the App you should ensure that you avoid using excessive force and take regular breaks, and if you experience soreness or develop symptoms such as pain, tingling, numbness, or burning you should stop using the App and consult a doctor; (ii) you should stay aware of your surroundings and keep a firm grip on your device while using the App to avoid damage or injury to yourself, your device, or other people and property around you; and (iii) never use the ShapeMix Service while driving a motor vehicle or operating other machinery, or while engaging in other activities that require focused attention to accomplish safely.
8. REMIXED TRACKS: CREATION AND USE
8.1 General. The ShapeMix Service may now or in the future provide features for you and other Users to enable the sharing of Remixed Tracks with other Users, and provide for the hosting, sharing, reproduction, distribution, public performance, public display and creation of derivative works of such Remixed Tracks. You must be a registered User to share Remixed Tracks via the ShapeMix Service.
8.2 No Obligation to Publish. ShapeMix makes no representations that it will publish or make publicly available via the ShapeMix Service any Remixed Tracks, and reserves the right, in its sole discretion, to refuse to allow any Remixed Tracks via the ShapeMix Service, or to remove any Remixed Tracks at any time with or without notice.
8.3 License Grant by User to ShapeMix. By submitting Remixed Tracks via the ShapeMix Service, you hereby grant ShapeMix and its affiliates, sublicensees, partners, designees, and assignees of the ShapeMix Service (collectively, the “ShapeMix Licensees”) rights as follows:
8.3.1 Public Remixed Tracks. Your submission of one or more Remixed Tracks via the App and your use of one or more of the “Share” features of the ShapeMix Service in connection therewith shall constitute a designation of such Remixed Tracks as “Public” (your “Public Remixed Tracks”). In that regard, you hereby grant the ShapeMix Licensees a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, throughout the universe, to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit Public Remixed Tracks created by you and derivatives thereof in connection with the ShapeMix Service and the business, products and/or services of the ShapeMix Licensees, including, without limitation, for marketing, promoting, and redistributing part or all of the ShapeMix Service (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed, and you hereby agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Public Remixed Tracks. In addition, you grant the ShapeMix Licensees a non-exclusive, perpetual right to use your name and/or likeness and/or any name and/or likeness that you submit in connection with Public Remixed Tracks created by you, without compensation or need for your prior approval, or to exercise any of the rights licensed by you hereunder, in connection with a fictional name or persona or without any attribution at all (including, without limitation, the to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional or related purposes without any additional compensation). If necessary, User will sign any documentation that ShapeMix (or its designees) reasonably require to make use of the non-exclusive rights User is granting in this Section 8.3.1.
8.3.2 Private Remixed Tracks. Remixed Tracks submitted by you via the App as to which you do not use any “Share” features of the ShapeMix Service shall be designated as “Private” (your “Private Remixed Tracks”). In that regard, with respect to Private Remixed Tracks, the license provided in Section 8.3.1 will be limited to use by the ShapeMix Licensees as reasonably necessary for the purpose of providing you access to the Private Remixed Tracks through the ShapeMix Service; provided, however, that you acknowledge that by designating one or more Remixed Tracks private after you have previously designated them as Public Remixed Tracks, ShapeMix will not be obligated to terminate any sublicenses previously granted with respect to such Remixed Tracks, nor shall the foregoing license limitation apply with respect to ongoing uses by the ShapeMix Licensees of such Remixed Tracks made by the ShapeMix Licensees when such Remixed Tracks were designated as Public Remixed Tracks (e.g., to the extent particular Remixed Tracks have been adapted, modified, or incorporated into any other work, including compilations and collective works).
8.4 License Grant by You to Other Users. You hereby grant to each User of the ShapeMix Service a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, non-sublicensable, and transferable license, throughout the universe, to access and share your Public Remixed Tracks with others as permitted by the intended functionality of the ShapeMix Service and these Terms.
8.5 Use of Stems in Connection With Remixed Tracks. You may not save permanent copies of Stems or Remixed Tracks to your device, computer desktop, or other storage media, rather all Stems and Remixed Tracks shall reside only in the App, the Player and/or one or more other permitted locations of the ShapeMix Service. In that regard, with respect to those Stems (and the Recordings and Songs embodied therein) as to which you have acquired a license, your rights shall be limited as follows: (i) you may access such Stems via the App and create Remixed Tracks based on such Stems through the App and (ii) you may upload one (1) copy of each such Remixed Track within the ShapeMix Service for sharing with others as permitted by these Terms and the intended features of the ShapeMix Service. Other than as set forth in the preceding sentence, you may not exploit or share any Remixed Tracks (or Stems) in an way.
9. USER SUBMISSIONS
9.1 Ownership. You retain all of your ownership rights in and to the original texts, files, images, photographs, artwork, audiovisual recordings, sound recordings, musical works, works of authorship, text postings, and other original materials owned and created by you which you upload within the ShapeMix Service (i.e., those materials created, owned and uploaded by you which do not incorporate any ShapeMix Content, Stems, Recordings, Songs, or any other third party materials) (“User Submissions”), including any trademarks, trade names, characters, and/or copyrights therein owned by you. Certain features of the ShapeMix Service (e.g., message boards, chat, comment sections, etc.) may enable you to submit User Submissions for use in and in connection with all or part of the ShapeMix Service, which User Submissions shall be subject to these Terms and any additional terms that may be posted for a specific feature of the ShapeMix Service. Notwithstanding the foregoing, User Submissions shall not be uploaded within the App or used in connection with the creation of Remixed Tracks.
9.2 Grant Of Rights. By uploading, displaying, publishing, or otherwise posting any User Submissions on or through the ShapeMix Service (or any portion thereof), you hereby grant to the ShapeMix Licensees a limited, non-exclusive, sub-licensable, worldwide, fully-paid and royalty free license to use, modify (reasonable efforts will be made to preserve the integrity of your User Submissions, but occasionally a technical modification such as compressing the file is necessary), publicly perform, publicly display (for editorial or promotional purposes), reproduce, and distribute such User Submissions without the requirement to make payment to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Submissions.
10. SUBMITTED CONTENT: RESTRICTIONS AND DISCLAIMERS
10.1 Submitted Content. Remixed Tracks and User Submissions are sometimes collectively referred to herein as “Submitted Content”.
10.2 Representations and Warranties. You are solely responsible for your Submitted Content and the consequences of uploading it and/or designating it as “Public”. In connection with Submitted Content, you affirm, represent, and warrant that: (i) you have the right to enable inclusion and use of your Submitted Content as permitted in these Terms and the intended functionality of the ShapeMix Service, and to grant the rights and licenses set forth above (other than with respect to Stems, Recordings and Songs actually supplied by ShapeMix in the App, which shall not be your responsibility), and (ii) your Submitted Content, and ShapeMix’s or any ShapeMix Licensee’s use of such Submitted Content pursuant to these Terms and/or exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) violate any applicable law or regulation; or (d) require obtaining a license from or payment of royalties to any third party for the exercise of any rights granted in these Terms (other than with respect to Stems, Recordings and Songs actually supplied by ShapeMix in the App, which have been supplied by ShapeMix and shall not be your responsibility).
10.3 Submitted Content Prohibitions. In connection with your Submitted Content, you agree that you will not (i) disparage ShapeMix (or any ShapeMix product or service), any Artist, Label or Publisher or any other person or party affiliated with the ShapeMix Service; (ii) publish falsehoods or misrepresentations that could damage ShapeMix or any third party; (iii) use any copyrighted content owned or controlled by a third party, including, but not limited to, literary works, musical works, or sound recordings, without obtaining the necessary permissions, licenses and authorizations for the use of such third-party content; (iv) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, inappropriate, indecent, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (v) post advertisements or solicitations of business; (vi) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (vii) post Submitted Content that would be harmful to minors in any manner; or (viii) reproduce, distribute, publicly display, publicly perform, adapt, or otherwise publish or cause to be published any Submitted Content except as permitted by these Terms and the intended features of the ShapeMix Service.
10.4 User Responsibility. Submitted Content is displayed for entertainment and informational purposes only and is not controlled by ShapeMix. ShapeMix cannot guarantee any anonymity or confidentiality with respect to any Submitted Content, and strongly recommends that you consider carefully what you upload and share via the ShapeMix Service. You understand that all Submitted Content is the sole responsibility of the person from whom such Submitted Content originated. This means that you, and not ShapeMix, is entirely responsible for the consequences of all Submitted Content that you upload, post, e-mail, transmit or otherwise make available through the ShapeMix Service.
10.5 Submitted Content Disclaimer. YOU UNDERSTAND THAT WHEN USING THE SHAPEMIX SERVICE, YOU MAY BE EXPOSED TO SUBMITTED CONTENT FROM A VARIETY OF SOURCES, AND THAT SHAPEMIX IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH SUBMITTED CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO SUBMITTED CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST SHAPEMIX WITH RESPECT THERETO. SHAPEMIX DOES NOT ENDORSE ANY SUBMITTED CONTENT OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL SHAPEMIX BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY SUBMITTED CONTENT, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY SUBMITTED CONTENT, ANY INTELLECTUAL PROPERTY INFRINGEMENT WITH REGARD TO ANY SUBMITTED CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY SUBMITTED CONTENT POSTED, EMAILED OR OTHERWISE DISPLAYED OR TRANSMITTED VIA THE SHAPEMIX SERVICE. BY ACCESSING OR USING ANY SUBMITTED CONTENT THROUGH THE SHAPEMIX SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST SHAPEMIX THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH SUBMITTED CONTENT.
11. MONITORING SUBMITTED CONTENT; REMOVAL OF CONTENT
ShapeMix does not control Submitted Content and does not have any obligation to monitor such Submitted Content for any purpose. ShapeMix may choose, in its sole discretion, to monitor, review, or otherwise access some or all Submitted Content, but by doing so ShapeMix nonetheless assumes no responsibility for the Submitted Content, no obligation to modify or remove any inappropriate Submitted Content, or to monitor, review, or otherwise access other Submitted Content, and ShapeMix assumes no responsibility for the conduct of the User submitting any Submitted Content. You acknowledge that ShapeMix may or may not pre-screen Submitted Content, but that ShapeMix and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Submitted Content that is available via the ShapeMix Service. Without limiting the foregoing, ShapeMix and its designees may, at any time and without prior notice, remove any Submitted Content that in the sole judgment of ShapeMix violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind.
12. PROHIBITED USE OF THE SHAPEMIX SERVICE
You agree not to use the ShapeMix Service for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence and by way of example, you agree that you will not, whether through the Sites, the App, your Submitted Content, or otherwise, do or attempt any of the following:
12.1 Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site, App, ShapeMix Content, Remixed Tracks, or any other part thereof, except and solely to the extent permitted by these Terms, the intended features of the ShapeMix Service, or by law, or otherwise attempt to use or access any of the ShapeMix Service other than as intended;
12.2 Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the ShapeMix Service, use of the ShapeMix Service, access to the ShapeMix Service, or content obtained through the ShapeMix Service (including without limitation ShapeMix Content, Stems and Remixed Tracks), for any purpose other than for your personal, non-commercial purposes;
12.3 Remove, circumvent, disable, damage or otherwise interfere with any security-related features or the ShapeMix Service, features that prevent or restrict the use or copying of any part of the ShapeMix Service or the Stems, or features that enforce limitations on the use of the ShapeMix Service or any content therein (including Stems);
12.4 Use any robot, spider, scraper, or other automated means of any kind to access the ShapeMix Service, except and solely to the extent permitted by these Terms and the intended features of the ShapeMix Service, deep-link to any feature or content on the ShapeMix Service, frame or otherwise enclose any ShapeMix trademark or any portion of the ShapeMix Service for any purpose without ShapeMix’s express written permission or bypass measures ShapeMix may use to prevent or restrict access to the ShapeMix Service;
12.5 Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
12.6 Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
12.7 Create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information to any feedback system employed through the ShapeMix Service;
12.8 Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
12.9 Interfere with or disrupt the ShapeMix Service, networks or servers connected to the ShapeMix Service, or violate the regulations, policies or procedures of such networks or servers;
12.10 Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your Submitted Content;
12.11 Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (commercial or otherwise); or
12.12 Use the ShapeMix Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
13. THIRD PARTY CONTENT AND LINKS
The ShapeMix Service may contain references or links to third-party materials (including, without limitation, web sites or services) not controlled by ShapeMix or its suppliers or licensors. ShapeMix provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that ShapeMix is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites or services accessible or linked from the ShapeMix Service. You should review applicable terms and policies, including any relevant privacy policies, associated with any third party web sites, software, or services you utilize.
14. AVAILABILITY OF SERVICE
ShapeMix may make changes to or discontinue any of the features, media, content, communities, products, software, or services available within the ShapeMix Service at any time, and without notice. The features, media, content, communities, products, software, or services on the ShapeMix Service may be out of date, and ShapeMix makes no commitment to update any materials on the ShapeMix Service.
15. USER DISAGREEMENTS
Your use of the ShapeMix Service may bring you into contact with other Users, and their Submitted Content. You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release ShapeMix (and ShapeMix’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
16. TERMINATION
16.1 By ShapeMix. ShapeMix, in its sole discretion and for any reason or no reason, may terminate any User or any user account (or any part thereof) you may have on the ShapeMix Service, disable your access to the ShapeMix Service (or any part thereof), discontinue the ShapeMix Service and any related services including support (or any part thereof), or terminate any license granted to you hereunder (including licensed rights to any content or materials used by you during your use of the ShapeMix Service, including Stems and Remixed Tracks), at any time, with or without notice. You agree that any termination of your access to the ShapeMix Service or any account you may have or portion thereof may be effected without prior notice, and you agree that ShapeMix shall not be liable to you or any third-party for any such termination, including for the unavailability of any Submitted Content (including those uploaded by you).
16.2 By You. Your only remedy with respect to any dissatisfaction with (i) the ShapeMix Service, (ii) any term of these Terms, (iii) any policy or practice of ShapeMix in operating the ShapeMix Service, or (iv) any content or information transmitted through the ShapeMix Service, is to terminate your use of the ShapeMix Service. You may terminate your use by closing your account, or discontinuing your use of any and all parts of the ShapeMix Service.
16.3 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration. Notwithstanding the foregoing, your rights under any licenses granted to you by ShapeMix or by any other ShapeMix users pursuant to these Terms shall terminate immediately upon termination by ShapeMix, and licenses granted to you with respect to any Submitted Content removed from the ShapeMix Service will terminate immediately upon such removal.
17. INDEMNITY
You agree to indemnify and hold harmless ShapeMix and its parent, subsidiaries, affiliates or any related companies, licensors (including each Label, Artist, and Publisher) and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other ShapeMix Users who use any Remixed Tracks you upload to and make Public on or via the ShapeMix Service (or specifically share with any other Users), from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the ShapeMix Service; (ii) your Submitted Content, including ShapeMix’s or any User’s reproduction, distribution, public performance, public display, modification, editing, adaptation, or other exploitation of your Submitted Content as permitted by these Terms; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to, claims that any Submitted Content infringes or violates any third party intellectual property rights, including any claims for the payment of so-called mechanical royalties, synchronization royalties, public performance royalties, or any other royalties claimed by any owner of any rights in any Submitted Content (other than in respect of permitted uses of Stems in Remixed Tracks). ShapeMix reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify ShapeMix and you agree to cooperate with ShapeMix’s defense of these claims. You agree not to settle any matter without prior written consent from ShapeMix. ShapeMix will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
18. DISCLAIMERS
THE SHAPEMIX SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, THE APP, ANY SHAPEMIX CONTENT, STEMS, OR ANY OTHER SERVICE OR INFORMATION PROVIDED BY SHAPEMIX), SUBMITTED CONTENT AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SHAPEMIX SERVICE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SHAPEMIX AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SHAPEMIX OR THROUGH THE SHAPEMIX SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SHAPEMIX AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SHAPEMIX SERVICE OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, THE APP, STEMS AND SUBMITTED CONTENT, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SHAPEMIX SERVICE (INCLUDING THE APP, STEMS, SUBMITTED CONTENT, AND OTHER MEDIA) OR ANY ASSOCIATED SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE SHAPEMIX SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
19. LIMITATION OF LIABILITY
IN NO EVENT WILL SHAPEMIX OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SHAPEMIX SERVICE OR ITS CONTENT, INCLUDING SUBMITTED CONTENT, OR ANY OTHER LINKED WEB SITE, APPLICATION, OR OTHER SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF SHAPEMIX OR ITS LICENSORS OR SUPPLIERS IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SHAPEMIX, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SHAPEMIX, SHAPEMIX’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT SHAPEMIX WOULD NOT BE ABLE TO OFFER THE SHAPEMIX SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
21. DIGITAL MILLENNIUM COPYRIGHT ACT
21.1 General. ShapeMix respects the rights of copyright owners and expects Users of the ShapeMix Service to do the same. Therefore, infringing content may not be submitted to the ShapeMix Service or used, in whole or in part, in any Submitted Content. If you upload Submitted Content that contains any copyrighted work, including literary works, musical works, or sound recordings, or any combination thereof, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the ShapeMix Service and grant the rights to any third parties, including ShapeMix and any other Users, contained in these Terms. In addition to being grounds for removal of your Submitted Content, termination of your account, and any other remedy ShapeMix may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
21.2 Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the ShapeMix Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing ShapeMix’s designated copyright agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) A description of the copyrighted work that you claim has been infringed;
(iii) A description of where the material that you claim is infringing is located on the ShapeMix Service;
(iv) The address, telephone number, and/or electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
It is ShapeMix’s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, ShapeMix will promptly terminate without notice the accounts of Users that are determined by ShapeMix to be “repeat infringers.” If ShapeMix receives more than three takedown notices regarding a User’s Submitted Content, then that User will be considered a repeat infringer and their account will be terminated.
ShapeMix’s designated copyright agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, ShapeMix, LLC, 207 South Street, Floor 1 ,Boston MA 02111, or by electronic mail at info@shapemix.com.
THIS CONTACT INFORMATION IS ONLY FOR REPORTING ALLEGED COPYRIGHT (OR OTHER RIGHTS) INFRINGEMENTS. CONTACT INFORMATION FOR OTHER MATTERS IS PROVIDED ELSEWHERE ON THE SHAPEMIX SERVICE.
22. DISPUTE RESOLUTION
These Terms, their validity and effect, shall be interpreted under and governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against ShapeMix arising from or related to these Terms or the ShapeMix Service shall be exclusively resolved by a court located in New York, New York. You agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes. You and ShapeMix agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this agreement or the ShapeMix Service must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
23. NOTICES
ShapeMix may provide you with notices by electronic mail, regular mail or postings on the ShapeMix Service. If Notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless ShapeMix is notified that the electronic mail address is invalid. If notice is provided by posting through the ShapeMix Service, then notice will be deemed given upon such posting. Alternatively, ShapeMix may give you legal notice by mail to a postal address, if provided by you through the ShapeMix Service. In such case, notice will be deemed given three days after the date of mailing.
24. MISCELLANEOUS
These Terms (and related Privacy Policy) are the entire agreement between you and ShapeMix relating to the subject matter herein, and supersede all previous communications, representations, understandings and agreements, either oral or written, between you and ShapeMix with respect to said subject matter. These Terms shall not be modified except in a writing signed by both parties or by a change to these Terms by ShapeMix in its discretion as provided above. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed from the applicable agreement, and the remaining provisions thereof shall remain in full force and effect. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision, and the failure of ShapeMix to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the future performance of any such terms or conditions. No consent to a breach of any express or implied term of the Terms or any other notice, directive, or rule otherwise posted through the ShapeMix Service shall constitute consent to any prior or subsequent breach. You agree that no joint venture, partnership, employment, or agency relationship exists between you and ShapeMix as a result of these Terms or use of the ShapeMix Service. You further acknowledge that by submitting Submitted Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and ShapeMix other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ShapeMix without restriction, including by operation of law, merger, or sale of all or substantially all of the assets to which this agreement pertains (or sale of all or substantially all of the assets of ShapeMix). Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement.
The services hereunder are offered by:
SHAPEMIX , LLC
207 South St.
Floor 1
Boston MA, 02111
info@shapemix.com
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.