XUSIC - GENERAL TERMS AND CONDITIONS – WEBSITE AND SERVICE
Please read these Terms and Conditions and other documents referred to in this document
(such as our Privacy Policy and Cookie Policy) carefully since
it affects your legal rights.
Article 1 General
- These General Terms and Conditions (hereinafter: "Terms and Conditions ") apply to
the use of this website including the Xusic Music Catalogue
(hereinafter: "the Service"), the Subscription you have entered into with Xusic B.V.
and any software applications or access to any content or material made available by
Xusic B.V. (hereinafter: "Xusic"). When visiting our website, these Terms and
Conditions, our Cookie Policy and our Privacy Policy apply to your use. If you do
not wish to be bound by the aforementioned Terms and Conditions, do not visit this
website or use our Service.
- Any and all use of the music provided within the Service will be subject to a
separate music licence agreement between you and Xusic which regulates your right
to use and distribute the Tracks
upon periodic payment (hereinafter: “Subscription ").
- More information on the Subscriptions offered by Xusic can be found on the website,
or by contacting info@xusic.com. If you have any questions regarding your right to
use the Tracks under a partner agreement (such as a multi-channel network/"MCN"),
please contact the relevant partner/MCN or info@xusic.com.
- The Service is provided by Xusic B.V., located at: Koivistokade 58, 1013 BB,
Amsterdam, the Netherlands. info@xusic.com.
- By visiting this website and/or using the Service, you acknowledge that you have
read and understood and agree to be bound by these Terms and Conditions and the
documents referred to therein.
- Xusic reserves the right, at its full discretion, to modify these Terms and
Conditions at any time. Any such modification enters into force when published on
https://www.xusic.com or communicated to you in any other appropriate manner.
Your continued use of the Service after such modification is valid as consent
thereto. Do check the Website regularly to verify whether these Terms and
Conditions or any other document referred to herein have been modified.
- If you do not accept to abide to these Terms and Conditions (or are unable
to comply with them) you are not authorised to use the Service, the Website
or access any content.
- Any translation of these Terms and Conditions from English into another
language is made only for convenience purposes and the translation will
not be a valid contract. At all times will the English version be the
prevailing one and the version valid as agreement and Terms and Conditions.
Article 2 The Service and General Limitations of Use
- The Service is an online music catalogue service, by which Xusic makes available sound recordings of performances of musical works (with or without lyrics), collectively as well as any part thereof, (hereinafter: "Tracks"), for the purpose to be used by registered users in online audiovisual productions made public, reproduced and/or made available on online platforms such as but not limited to YouTube, Facebook, Instagram, LinkedIn, Twitch, Podcasts, TikTok, Games, Vimeo, websites, apps, etc., subject to the conditions laid down in these Terms and Conditions and the applicable music subscription.
- You access the Service through the online interface of Xusic. The Service is available to entities and persons who have registered and created a user account for the Service. In order to use the Service and access the Tracks you must be over 18 years of age in order to apply for a Subscription. You will also have to have the power to enter into a binding contract (i.e. be of mental capacity to enter into binding contracts, not personally bankrupt, etc.) and not be barred from doing so under any applicable law. If you are under 18 years of age or unable to solely enter into a binding agreement with Xusic on your own, please contact info@xusic.com.
- The assortment of Tracks in the Service may be amended by Xusic at all times, with or without any notice to you. You accept that Tracks that are available may no longer be available at a later stage.
- Track types and descriptions, such as genres, categories etc., are provided for your convenience only and Xusic does not guarantee their accuracy.
- You agree not to use or launch any automated system (including, without limitation: any robot, spider or offline reader) that accesses the Service in a manner that sends more requests to Xusic or its servers in a given period of time than would be reasonably possible for a human to do in the same period of time using a publicly available, standard (i.e., not modified) web browser.
- You agree to only download Tracks in accordance with the restrictions applicable to your account.
Article 3 How to Access the Service and Your Account
- In order to use the Service you must create a personal account and register as a user by following the instructions further specified in the user registration form. Your account will contain basic account information including username and password. The password you choose must be unique and distinct. You are responsible for your user name and password. You may not select or use an identity of another person with the intent to impersonate that person. You must use a valid email address and Xusic reserves the right to test and verify this at any time. You are not allowed to have more than one account. It is prohibited to agree with third parties upon the transfer, utilization or the provision of accounts, resources or access data.
- You must immediately notify Xusic of any breach of security or unauthorised use of your Xusic account that you become aware of.
- You agree that you are solely responsible (to Xusic and others) for all activities that occur under your Xusic account.
Article 4 Trials, Payments etc.
- Some of our different Services require payment. If you have received a discount code or free offer/a free trial period provided by Xusic or from a third party acting on behalf of Xusic for access to a paid Service, separate additional terms and conditions for such offer may also apply to such access to the Service and you must agree to comply with such terms in order to be able to use the Service.
- If you have been offered a free trial, Xusic reserves the right, in its sole discretion, to determine your eligibility for a trial, and if you’re determined not to be eligible, modify the trial at any time with prior written notice. For some trials we require you to provide payment details to start the trial. At the end of such trial, and if you have not decided to terminate the agreement, Xusic will automatically start to charge for such provided Service.
Article 5 Intellectual Property Rights
- You may not use, transfer, display, perform or otherwise make the Tracks available, except as expressly permitted under these Terms and Conditions and under the applicable Subscription.
- All (intellectual property right and other rights involved with the) Tracks available through the Service and on the Website, including, but not limited to designs, text, images, graphics, pictures, videos, information, applications, software, music, sound and other files, belong in their entirety to the property of Xusic.
- Except for the rights expressly granted to you in the applicable Subscription and in these Terms and Conditions, no right to the Service or the Tracks is assigned to you, and all rights, titles and interest in the Service and the Tracks are reserved and retained by Xusic. Xusic do under no circumstances transfer any right, title or interest in the Tracks to you, and you do not acquire any ownership rights to the Service or the Tracks.
- Please note that you may not use the Tracks in connection with any material or otherwise in a manner or context which is defamatory, illegal or inciteful of an illegal act; immoral; racist; hateful or discriminatory against any person on for example race, nationality, religion, ethnic identity, gender, gender identity or sexual orientation; constitutes encouragement of violence or use of weapons; pornographic; or in a manner or context that otherwise violates any rights of anyone associated with the Tracks. You shall comply with any applicable laws and regulations. Moreover, you may not use the Tracks in connection with sensitive subjects without Xusic's prior written consent. Sensitive subject include, but are not limited to: political content, such as the promotion, advertisement or endorsement of any party, candidate or elected official; and "adult videos" and promotion of adult entertainment venues, escort services, or the like.
- Please also note that you are not allowed to upload or otherwise exploit the Tracks provided in the Service as stand-alone files (for example, uploading the track to any distribution platform or otherwise distributing a track as a full-length (or shortened) file, on its own or with just a background picture and/or just the name of the artist/track).
Article 6 Cooling-off Period for private customers
- When you are a private customer, and you have not yet downloaded any Track,
you have the right to withdraw your order without giving any reason within 14 days
(hereinafter: “cooling-off period”), pursuant to articles 6:230q jo 6:230o Dutch
Civil Code. We may ask you about the reason for your withdrawal, but you are not
obliged to give your reason(s) for withdrawing.
- The cooling-off period starts on the day on which the agreement / Subscription
is concluded (meaning the moment you have confirmed your purchase online).
- When you act in the exercise of a profession or business, the cooling-off period
does not apply.
- To exercise the right of withdrawal, you must inform us of your decision to
withdraw from the contract by an unequivocal statement (e.g. written letter sent
by post or e-mail to info@xusic.com) of your decision to withdraw from the contract.
You may use the attached model withdrawal form at the bottom of this Agreement
for this purpose, but it shall not be obligatory for you to do so. Xusic will
then provide you with further instructions on how to proceed.
- If you report your withdrawal electronically, we shall send an acknowledgement
of receipt of this report without delay.
- We will reimburse all payments made by you without delay, but within 14
days following the day on which you notified us of the withdrawal.
- We shall use the same means of payment as you have used for repayment,
unless you agree to a different method. The refund is free of charge for
the consumer.
- You shall bear no cost for the total or partial delivery of the Tracks
(that are not supplied on a tangible medium) if:
- you have not expressly consented to the performance of the contract before
the end of the cooling-off period;
- you have not acknowledged that you waive your right of withdrawal
(as described in article 6.1 of these Terms and Conditions) or;
- we have failed to confirm your declaration of withdrawal.
- If you make use of your right of withdrawal, all supplementary contracts
are cancelled by operation of law.
Article 7 Use of Computer Resources
- You agree that Xusic has the right to allow the Service to make use of the
storage hardware, processor and bandwidth of your Internet connection, computer,
game console, work station or similar media device; however, only as reasonably
necessary to provide the Service.
- If you are connected to the Internet in a foreign country the Service may
still make use of the storage hardware, processor and bandwidth on your Internet
connection, computer, game console, work station or similar media device. As a
consequence, extra charges from your Internet Service Provider ("ISP") may be
brought on you. Check with your ISP for further details. By using the Service you
agree to take responsibility for these extra charges towards your ISP and you agree
to indemnify Xusic for any third party claims due to the extra charges from your
ISP referable to you.
Article 8 Third Party Applications
- The Service and website is integrated with third party applications, websites
and other services to make the Service and Tracks provided therein available to you as
a user. These third party applications may have their own terms and conditions of use
etc., and your use of these third party applications will therefore be subject to the
applicable terms and conditions for such third party provider. Xusic is not responsible
or liable for behaviour, content or features of any third party application.
Article 9 Advertisement
- You may separately have accepted to be exposed to commercial messages, newsletters
and advertisement sent by Xusic when using the Service. If you do not want to be notified
about these offers or news you may always opt-out from such information by following
the instructions in each notification which you receive.
Article 10 Support
- You will find answers to the most frequently asked questions about the
Service on the website www.xusic.com. You are always welcome to
contact Xusic on support@xusic.com.
Article 11 Privacy and Personal Data
- Xusic processes personal data about you and your use of the Service in
accordance with
Xusic’s Privacy Policy
and Cookie Policy applicable
from time to time.
Article 12 API Services
- Xusic's API Client uses API Services of YouTube, Harvest Media and Amazon Web
Services. If you use our Service on YouTube, you hereby by agreeing to our Privacy
Policy you hereby also certify that you have read and agree to
YouTube’s Terms General
Terms of Service and
Google’s Privacy
Policy.
- If you use our Service online, you hereby by agreeing to our Privacy Policy
you hereby also certify that you have read and agree to
Harvest
Media’s General Terms of Service,
Harvest Media’s Privacy Policy,
Amazon Web
Services’ General Terms of Service and
Amazon Web Services’
Privacy Policy.
Article 13 Service Level and Disclaimer
- Xusic will make reasonable efforts to keep the Service operational.
However, technical problems or maintenance may, from time to
time, result in interruptions.
- Xusic is not responsible for unavailability or deficiencies of the Services
caused by you, deficiencies in the Internet access or any other event beyond
Xusic’s control.
- Xusic will from time to time carry out updates and maintenance of the Service,
during which the Service might be unavailable. Xusic will try to arrange updates
and maintenance outside of peak usage hours.
- This Service is provided “as is” and “as available” and to the fullest extent
permitted by applicable law Xusic makes no warranty, representation, express or
implied, and/or disclaimer as regards to the availability, fitness for purpose,
non-infringement, content or tracks or other data provided and the quality of the
service. You use the Service at your own risk. You also acknowledge that freedom
from program errors cannot be obtained in the software industry. Xusic does not
warrant that the Service is free of malware or other harmful components.
- Xusic (including, but not limited to, affiliated companies and their contractors,
officers, directors and employees) shall in no event, and to the fullest extent
permitted by applicable law, be liable for any damages as a consequence of
shutdown by applicable law, be liable for any damages as a consequence of shutdown,
loss or effect on data, loss of profit, and claims for damages by a third party
or other indirect injury, unless in case of intent gross negligence or deliberate
recklessness of Xusic.
- Xusic reserves the right at any time, and from time to time, to modify or
discontinue, temporarily or permanently, functions and features of the Service
with or without notice, and Xusic shall have no liability to you if Xusic exercises
such rights.
Article 14 Indemnity
- Upon request by Xusic, you agree to indemnify, defend and hold Xusic harmless
(including, but not limited to, affiliated companies and their contractors,
officers, directors and employees) from all claims, liabilities and expenses
(including reasonable attorneys' fees) arising out of your misuse of the
Service in a manner not in strict conformance with these Terms.
- Furthermore, Xusic reserves the right, at its own expense, to assume the exclusive
defence and control of any matter otherwise subject to indemnification by you.
However, in which event you agree to cooperate with Xusic in asserting any
available defenses.
- Xusic guarantees to users of the Service that they will not be required to pay
any (additional) fees to any collective rights organization (such as in the
Netherlands: Buma/Stemra, SENA and NORMA) for the use of the Service or your
Subscription, the included music license and the Tracks provided therein.
Article 15 Limitation
- You agree that, to the extent permitted by applicable law, your sole and exclusive
remedy for any problems or dissatisfaction with the Service is to stop using the
Service. While Xusic accepts no responsibility for third party applications or the
content thereof, and while your relationship with such third party applications may
be governed by separate agreements with such third parties, to the extent permitted
by applicable law, your sole and exclusive remedy, as with respect to Xusic, for
any problems or dissatisfaction with third party applications or the content
thereof, is to uninstall and/or stop using any such third party applications.
- To the fullest extent permitted by law, in no event will Xusic, its officers,
shareholders, employees, agents, directors, subsidiaries, affiliates, successors,
assigns, suppliers, or licensors be liable for
- any indirect, special, incidental, punitive, exemplary, or consequential
damages;
- any loss of use, data, business, or profits (whether direct or indirect),
in all cases arising out of the use or inability to use the service and/or tracks,
third party applications, or third party application content, regardless of legal
theory, without regard to whether Xusic has been warned of the possibility of those
damages, and even if a remedy fails of its essential purpose; or;
- aggregate liability for all claims relating to the service, third party
applications, or third party application content more than the amounts paid by
you to Xusic during the prior twelve months in question, to the extent
permissible by applicable law.
- The above limitations of liability do not apply with respect to damage occasioned
by fraud, wilful misconduct, or gross negligence.
- If Xusic is liable, this liability is limited to the (partial) invoice amount
to which the liability relates.
Article 16 Term and Termination
- This agreement will continue to be in force until terminated by you or Xusic.
- If you or Xusic terminate this agreement for any reason or if you violate any of the
terms or conditions in these Terms and Conditions or any thereto related documents,
your right to use the Service and access to the Tracks will immediately terminate.
Xusic may further, at its sole discretion, terminate your account and your access to
the Service with 2 weeks’ notice.
Article 17 Assignment
- Xusic is entitled to in whole or in part assign its rights and obligations under
the music license agreement / Subscription, including these Terms and Conditions to
a third party. You may not assign aforesaid to any party.
Article 18 Partial Invalidity
- If any provision of these Terms and Conditions shall be invalid or unenforceable,
at any time or to any extent, then the remainder of these Terms and Conditions shall
not be affected thereby. Each provision of these Terms and Conditions shall be valid
and enforced to the fullest extent permitted by law.
Article 19 Applicable law and Dispute Resolution
- Dutch law shall exclusively apply to these Terms and Conditions. Any dispute,
controversy or claim arising out of or in connection with these Terms and Conditions,
or the breach, termination or invalidity thereof, shall be determined exclusively by
the court of Amsterdam, the Netherlands (Rechtbank Amsterdam).
- Xusic has the right regarding illegal copying or distribution of the Tracks or the
Service to the public, to instigate proceedings for damages or injunctions in any
court having jurisdiction.
Article 20 Additional Information or Questions
-
If you would like to receive further information regarding the Terms and Conditions,
you are more than welcome to contact us via the contact details provided below.
Xusic B.V.
Dutch Chamber of Commerce number: 83842616
info@xusic.com
Koivistokade 58
1013 BB Amsterdam
the Netherlands