FREEPLAY MUSIC TERMS AND CONDITIONS OF USE
Last Updated: July 2013
1. Acceptance of Agreement.
The Freeplay Music Terms and Conditions Of Use is a legal and binding agreement between you and Freeplay Music LLC. (“FPM”), which governs your use of all FPM materials, information, content, products and services made available to you by FPM (“Freeplay Content”), including but not limited to Freeplay Content on Freeplaymusic.com and its subdomains (collectively, the “Site”). [hereinafter the “Agreement”].
Please read the Agreement carefully prior to using the Site. By using or otherwise accessing the Site, or any component thereof, you hereby consent to and do become a party to this Agreement and you agree to be bound by and comply with the terms and conditions contained herein. If you do not accept and agree to all of the terms and conditions of this Agreement, please do not access or use the Site in any manner. Use of the Site means any access or attempted access or use of the Site whatsoever, including but not limited to the access or use of any Freeplay Content, content contained on or related to this Site.
By using this Site, you represent and warrant that you are over the age of 18 (or you have the permission of a parent or guardian) and are lawfully able to accept this Agreement. If you are using the Site on behalf of any entity, you further represent and warrant that you are authorized to accept this Agreement on such entity's behalf, and that such entity agrees to indemnify FPM for violations of this Agreement.
2(a) Free Broadcast Uses:
2(b) Free Theatrical use:
(ii) Further, to the extent that credits roll in a program, FPM shall be accorded appropriate screen credit, with size and placement on a so-called most favored nations basis with all other music providers, as follows: "Music Provided By freeplaymusic.com”. Failure to either file the applicable cue sheets or to simultaneously send copies of such cue sheets to FPM shall invalidate and void the Agreement (“Invalidation of the Agreement”). Such Invalidation of the Agreement, may render the use and/or prior use of the FPM music actionable as acts of infringement under United States Copyright law and subject to the remedies provided in the United States Copyright Act.
2(c) Free Personal Use:
2(d) Free Student Educational Use:
For further clarification, of the conditions to qualify for Free Student Educational Use and to confirm qualifications for FPM.s free master recording and synchronization rights, please contact FPM at: firstname.lastname@example.org.
2(e) Free YouTube Use:
3. Uses of Freeplay Content Requiring A Signed Paid License:
All of the following uses of Freeplay Content require a fully signed and paid license with FPM for use:
(i) Any local, regional, national, standard or cable broadcaster that does not have an ASCAP, BMI or SESAC blanket license as defined.
(ii)Television use premiering outside the U.S.
(iii) Advertising and promo or other similar uses
(b) All radio use
(c) Direct-to-video, DVD, CD, CDR DVDR, downloads or other similar media, including replication, distribution, promotional, or sale;
(d) Books and/or Magazines
(e) Games and/or Toy Use
(f) Non-broadcast Multimedia
(i) Live events
(ii) Power Point presentations
(iii) Trade shows/conventions
(g) Music on hold
(i) Any website including, but not limited to personal websites and any website used to promote a business, product, service, organization or club:
(ii) Any videos including videos posted, viral or disseminated in any other fashion.
(iii) Gaming / Shareware / Freeware
(i) Greeting cards
(j) Film Festivals / Competitions -
(k) Ring Tones
(l) Religious Uses
(m) Political Uses
(p) Any change to any of Freeplay’s Content, including but not limited to a change or addition to any of Freeplay’s music, use of Freeplay’s music in the creation of a new copyright or the creation of a derivative work of any of Freeplay’s music.
(q) All other uses that do not qualify for a free license under paragraph 2(a), 2(b), 2 (c), 2(d), and 2(e)
A signed fully paid license is required for all of the above and must be completed prior to any of the above uses. Please contact email@example.com for an estimate of the licensing fee or see our see our rate cards at http://www.freeplaymusic.com/licensing/ratecard.php and contact us so we may issue a license.
Please note that the rates on the rate cards are provided as examples of various fees, but are not meant as price quotes and are not binding upon FPM. All fees will be determined on a case by case basis.
4. FPM may add, delete or modify any of the terms and conditions contained in this Agreement at any time at FPM’s sole discretion. If any modification is unacceptable to you, you must stop using the Site. Unless otherwise specifically set forth in any notice, all changes shall be effective immediately upon the posting of notice of any such change (the effective date.). Your continued use of the Site following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with FPM. Any new materials, information, content, products and/or services becoming available are considered Freeplay Content and a part of the Site and your use of them will be governed by the terms and conditions of this Agreement unless FPM notifies you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services or websites. FPM reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Site with or without notice. You agree that FPM shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Site.
5. You may not use, nor allow others to use, the Site, directly or indirectly, to attempt to or actually disrupt, impair or interfere with alter or modify the Site or any information, data or materials posted and/or displayed by FPM or any related party; or act in a way that affects or reflects negatively on FPM, the Site or any related party. You agree to comply with all local, state, federal laws, statures rules and regulations, as well as any international treaties, which are applicable to your use of the Site.
6. DMCA: By using this Site and/or uploading any material to this Site, you represent and warrant as a material part of this Agreement that any and all intellectual property, content, or media you upload ("Your Content") does not in any way infringe upon the intellectual property rights of any third party, including such rights manifested in registered or unregistered copyrights, trademarks, patents, or trade secrets, whether at common law, by statute or under the terms of the Digital Millennium Copyright Act, as amended.
You also agree not to upload pornographic, obscene or content containing any form of child exploitation.
ADDITIONALLY, YOU HEREBY INDEMNIFY AND HOLD HARMLESS FREEPLAY MUSIC LLC AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS OF ANY NATURE OR KIND ARISING FROM ANY UPLOADS OF MATERIAL YOU PLACE ON OUR SITE, INCLUDING ATTORNEYS' FEES AND COSTS.
WE RESERVE THE RIGHT TO IMMEDIATELY REMOVE ANY MATERIAL THAT IS OR MAY BE INFRINGING OF ANY THIRD PARTY RIGHTS AT ANYTIME, WITHOUT REFUND OR PRIOR NOTICE TO YOU. YOU AGREE THAT WE MAY TERMINATE YOUR ACCESS AT ANYTIME FOR ANY REASON WITHOUT NOTICE.
If you believe our Site contains content that infringes upon your rights, please notify us immediately. We respect the intellectual property of others, and we ask that our users do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, and you wish for the content to be removed, please provide our Copyright Agent with the following information:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) A description of the copyrighted work that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Site;
(d) Your address, telephone number, and e-mail address;
(e) 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; and
(f) 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.
Our Copyright Agent for Notice of claims of copyright infringement on the site can be reached as follows:
Freeplay Music, LLC
DMCA Compliance 1650 Broadway #1109 NY, NY 10019
DMCA [at] freeplaymusic (dot) com
Pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act, we may reinstate content if we receive a counter notification by the provider of the affected content.
If you are the content provider, and you feel you must submit a counter notification regarding content that has been removed from our site, you must submit -- in writing -- a counter notification that must include the following:
(1) Identify the specific url related to the content that FPM removed or disabled access to;
(2) Provide your name, address, telephone number, email address. Also, provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or New York County, New York, if your address is outside of the United States of America), and that you will accept service of process from the person, entity or agent of the preceding that provided the notification under Section 16;
(3) Include the statement: "I swear, under penalty of perjury, that I have a good faith belief that the content identified was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the exact material identified by the complainant has been removed or disabled at the URL identified and will be no longer shown";
(4) Sign the notice;
(5) Mail the notice to:
Freeplay Music, LLC.
DMCA Counter Notification 1650 Broadway, Suite 1109 N.Y., N.Y. 10019
Please note that you will be liable for any damages (which include costs and attorney fees) if you materially represent that your content and/or activity is not infringing the copyrights of others. If you are not sure if your content and or activity infringes on the copyrights of others, we advise you to consult with an attorney.
You may find a sample counter claim form here: http://www.chillingeffects.org/dmca/counter512.pdf
8. Intellectual Property.
(a) Copyright. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to intellectual property) rights both at common law and through registration. The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed by this Agreement, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials.
(b) Trademarks: Freeplay Music and other names used throughout the site are either trademarks or registered trademarks of FreePlay Music, LLC or other third parties. Other product and company names mentioned on the Site may be trademarks of their respective owners.
(c) Freeplay Content: The content available through the Site is the property of FPM or its licensors and is protected by copyright and other intellectual property laws. You acknowledge that FPM retains exclusive ownership of the Site and all intellectual property rights associated therewith. In the event that you are deemed to own or control any rights, you agree that all rights therein will be deemed irrevocable transferred to FPM by virtue of this agreement. You will execute and deliver to FPM such instruments of transfer and other documents regarding the rights of FPM or its designees as FPM may request. FPM may sign such documents in your name (and you hereby appoint FPM as its agent and attorney-in-fact for such purposes) and make appropriate disposition of them consistent with this agreement. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Site or its contents, and FPM reserves all rights not expressly granted hereunder. You shall promptly notify FPM in writing upon your discovery of any unauthorized use or infringement of the Site or its contents or FPM.s patent, copyright, trade secret, trademarks or other intellectual property rights. The Site contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
9. (a) To the maximum extent permitted by applicable law, neither FPM, its licensors, suppliers, partners, affiliates or third party service providers shall be liable to you or any third party for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, or any other form of damages in any manner arising out of or in connection with this Agreement or your use of the Site, regardless of the form of action or the basis of the claim or whether or not FPM has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and exclusions may not apply to you.
(b) You agree to indemnify and hold FPM harmless against any losses, expenses, costs or damages (including FPM’s reasonable attorneys’ fees, expert fees and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon your breach of or failure to comply with, the terms and conditions of this Agreement, your use of the Site, and/or the use of the Site by any other person using your identifying information. FPM may in its discretion participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect FPM's rights or obligations shall be made without FPM's prior written approval. FPM reserves the right, at FPM’s expense and on notice to you, to assume exclusive defense and control of any such claim or action and in such circumstance your indemnification obligation will terminate. You will use reasonable efforts to prevent introduction, and will not introduce into the websites, software or network of FPM, any virus, worm, back door, Trojan Horse, or similar harmful code.
10. FPM may terminate this Agreement, restrict, suspend or terminate your use of the Site immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and this will not limit any other rights or remedies which are available to FPM. You may terminate this Agreement by providing FPM with written notice of your termination and ceasing to use the Site and all FPM content. Termination is your sole right and exclusive remedy if you are not satisfied with the Site. Upon the effective date of any such termination, your right to use the Site and all FPM content shall immediately cease. Termination of this Agreement shall not relieve you of any obligations to pay accrued or ongoing charges. Without limitation of any other provisions hereof regarding termination, FPM reserves the right to terminate your use of the Site or the FPM content for any reason, without cause, upon three (3) days notice.
11. This Agreement is governed by the laws of the State of New York without regard to its conflicts of law provisions and you hereby consent to the exclusive jurisdiction of any venue in the federal state courts located in New York County, New York with respect to all disputes arising out of or relating to the Site. In addition, you hereby consent to the exclusive jurisdiction of any venue in such courts for any action commenced by you against FPM or its affiliates. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this section. FPM’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of FPM’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by FPM with respect to such use. Any process in any action, suit or proceeding arising out of or relating to this agreement may, among other methods be served upon you hereto by delivering it or mailing it to you. Any such delivery or mail service shall be deemed to have the same force and effect as personal service in New York.
12. These terms and conditions and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement constitute the entire agreement between you and FPM, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Site.
13. You agree to pay FPM all reasonable attorneys’ fees and costs incurred by FPM to collect any past due amounts. Your agreement(s) with FPM may be terminated with no notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your agreement(s). Client shall also pay FPM interest thereon at the maximum rate permitted by law at the time of such failure, such interest to accrue from the time the amount was due until it is paid to Company. The right to such payment is in addition to any other remedies available to Company under this Agreement or at law. FPM reserves the right, at any time, to change its fees and billing methods, including the addition of supplemental fees or separate charges for content, effective thirty (30) days after an online posting on the Fees page at [link]. FPM may additionally provide notice of billing changes via email. If any such change is unacceptable to you, you may terminate your use of the Site by providing FPM with written notice of your termination and ceasing to use the Site. Your continued use of the Site following the effective date of change to such fees and billing methods shall constitute your acceptance of such change.
14. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provisions will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in full force and effect. No failure or delay in enforcing any provision, exercising any option or requiring performance shall be construed to be a waiver of that or any other right in connection with this Agreement. Any provision which must survive in order to allow FPM to enforce its meaning shall survive the termination of this Agreement, provided, however, no action arising out of this Agreement or your use of the Site, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law. If you've found FPM Music bundled with any third party product such as Apple products, HP products, Nokia products, or with your .Mac account, this Agreement applies to your use of FPM Music and supersedes any agreement you may have with such third party.
15. The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (but not for resale or redistribution) or as allowed via the site (such as RSS feeds). Accessing this site via automated means is expressly forbidden except where stated otherwise explicitly or implicitly (APIs, RSS feeds etc). Using bots, crawlers, scripts or other automated means to access and manipulate the content of this site, including streaming, downloading and posting comments is expressly forbidden.
16. We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Site. This includes any uploaded audio or visual content, as well as artwork, avatars, or comments that may be posted to the site.
17. Your right to use the Site is not transferable. Any password or right given to you to obtain information or documents is not transferable.
19. THE INFORMATION FROM OR THROUGH THE SITE IS PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING THE FORM OR DOCUMENT IS DISCLAIMED. WE WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT MAY RESULT FROM USE OF OR INABILITY TO USE OUR SITE. OUR MAXIMUM LIABILITY TO YOU UNDER ALL CIRCUMSTANCES WILL BE EQUAL TO THE PURCHASE PRICE YOU PAY FOR ANY GOODS, SERVICES OR INFORMATION HEREIN.
If you do not see your intended use of FPM Music listed, or have questions or comments, please contact our office: New York Office - firstname.lastname@example.org Phone 212-974-0548