TERMS AND CONDITIONS
The rights granted hereunder shall include sale of permanent digital downloads, temporary digital downloads, interactive streaming (both tethered and non-tethered), and non-interactive streaming (both promotional and fee based). Specific rights are more fully described on the attached fee schedule. YOU AND COMPANY AGREE THAT COMPANIES LICENSED TO PROVIDE YOUR MATERIALS HEREUNDER MUST BE APPROVED BY YOU.
By clicking the “I Agree” button, you (“you”) irrevocably grant to Company, throughout the world and during the Term (as defined below), the exclusive right:
YOU AGREE THAT YOU WILL NOT USE THE SITE OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT ARE UNLAWFUL, HARMFUL, THREATENING, OBSCENE, HARASSING, DEFAMATORY OR HATEFUL OR THAT CONTAIN OBJECTS OR SYMBOLS OF HATE, INVADE THE PRIVACY OF ANY THIRD PARTY, CONTAIN NUDITY (INCLUDING WITHOUT LIMITATION ANY PORNOGRAPHY, EROTICA, CHILD PORNOGRAPHY OR CHILD EROTICA), ARE DECEPTIVE, THREATENING, ABUSIVE, INCITING OF UNLAWFUL ACTION, DEFAMATORY, LIBELOUS, VULGAR OR VIOLENT OR CONSTITUTE HATE SPEECH OR ARE OTHERWISE OBJECTIONABLE IN THE SOLE OPINION OF COMPANY;
YOU FURTHER AGREE THAT YOU WILL NOT USE THE SITE OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of the Accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the Supercall Copyright Policy for further information. You acknowledge and agree that Company may disable access to your account, and/or disable access to any Recordings or any associated materials you provide to Company, in the event that Company receives any claim which, if true, would constitute a violation of your representations and warranties hereunder. You agree that you will not be entitled to any reimbursement for any fees paid by you to Company in the event Company disables access to your account, your Recordings and/or any other materials you provide to Company.
The term “Recordings” shall be defined as the sound recordings and audio/visual recordings, or live streams that you submit to Company or Viewer at any time. Company reserves the right to reject any materials (including, without limitation, sound recordings, videos and/or artwork) that you submit, in its sole discretion. You agree to submit all Recordings and artwork, at your sole expense, in the format(s) required by Company or its consumer licensees. Technical descriptions of such format(s) will be provided to you upon request. You agree that Company and/or its suppliers will have the right to monitor and review content distributed through the Supercall platform without notice and at the the Company’s sole discretion.
In no circumstances shall Company have any liability to you with respect to the quality, sufficiency or other aspect of the creation and delivery of such Content delivered through the Supercall platform or site.
(b) “Net Income” means Company’s actual receipts from providers related to the sale of the Recording. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and any lawsuit commenced) no later than one year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.
(c) To the extent that you owe any amounts to Company as a consequence of these Terms of Service, Company shall have the right to deduct all or a portion of such amounts from any Net Income otherwise then payable to you.
(d) In the event that Company has, in its sole discretion, reason to suspect that your account has been subjected to and/or involved in fraudulent, or any other activities that are contrary to this Terms of Service (“TOS”), Company reserves the right to, suspend the offending account making payment and withdrawal impossible, discontinue posting of Net Income or Credits to your account and block your ability to otherwise withdraw or deposit funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained at the sole discretion of the Company. To the extent that any fraudulent or offending activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by Company (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by Company from any monies otherwise payable to you hereunder. Certain of Company’s licensees may also have policies related to Rules of Conduct, Decency,and fraud and suspected fraudulent activities and you agree that it is your responsibility to investigate such policies, if any, and such policies shall be binding upon you hereunder.
(e) The Net Income in your Supercall account may be held by the Company in an interest-bearing account. The Company may, in its sole discretion, retain all interest earned on the Net Income or pay to you all or a portion of such interest.
(f) In connection with your decision to use the Supercall platform, iPhone application or other “widgets” as a platform for users to stream or view your Recordings, you hereby waive any right to digital artist royalties, performance royalties or any other fees or royalties, statutory or otherwise, that Company may be obligated to pay you or a third party in connection with such use of the Streaming Player or Site. For the avoidance of doubt, to the extent that you utilize Supercall on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that Company is not responsible to make any third party payments in connection with the Recordings and underlying performance which you own and/or control.
(g) In the event that Company is presented with a claim of breach or violation of these TOS or acopyright or trademark laws, failure to comply with any third party license requirement or any other claim which, if true, would constitute your breach of, or non-compliance with, any of your representations, warranties or agreements hereunder, and in its reasonable business judgment Company elects to engage an attorney to review and/or respond to such claim, Company shall – in its sole discretion – have the right to deduct from your account or charge your credit card up to $300 to offset the costs of associated legal fees.
You warrant and represent that you are at least eighteen (18) years of age, you have the right and authority to enter into this agreement and to grant to Company all rights specified; all of the Recordings, including, without limitation, any sampled third party material embodied therein, artwork, metadata, videos and any other materials furnished by you to Company or relating to the Recordings are owned or controlled by you and the use thereof as described or contemplated herein and/or on the Site shall not infringe on the copyrights, trademark rights or other rights of any person or entity; and that Company shall have the right to exploit same in any manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity, other than the amounts payable to you hereunder. You shall defend and indemnify Company and any of its affiliates (including any directors, members, officers, employees and other representatives) and hold them harmless against any third party claims or expenses and losses resulting from breach, or a claim which if true would constitute a breach of the foregoing warranties, these Terms of Service, and/or the Copyright Policy, including reasonable attorneys’ fees and litigation expenses.
Company shall give you prompt notice of any claim which is subject to the foregoing indemnification obligation and you shall defend Company at your expense with counsel approved by Company (which approval shall not be unreasonably withheld). If a claim of a Violation of these TOS is made or Reported, Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and/or any associated materials that are the subject of such claim, and/or to withhold payment of any monies due hereunder in an amount reasonably related to the claim and potential expenses. Any settlement of any claim shall be subject to Company’s prior written approval.
(a) Disable, hack, circumvent or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Company content or materials;
(b) Use any metadata, meta tags or other hidden text utilizing a Supercall name, trademark, URL or product name;
(c) Upload, submit, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, “pyramid schemes” or any other form of solicitation;
(d) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
(e) Upload, submit, post, email, or otherwise transmit, via the Site or Services, any Recordings or other materials that are unlawful, harmful, threatening, obscene, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable in the sole opinion of Company;
(f) Destroy, interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available at the Site, servers or networks connected to the Site or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Site;
(g) Attempt to scan, probe or test the vulnerability of any Company system or network or breach or impair or circumvent any security or authentication measures protecting and providing security for the Site or Services;
(h) Attempt to decompile, disassemble, decipher or reverse engineer any of the software used to provide the Site or Services;
(i) Attempt to search, meta-search or access the Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Company or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Site to determine how a website or web page ranks.
(j) Collect or store personal data about other users of the Site or the Services without their express and explicit permission;
(k) Misrepresent or impersonate your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud;
(l) Use the Site or Services in any manner not permitted by these Terms of Service; or
(m) Instruct or encourage any other individual to do any of the foregoing or to break and/or violate any term of these Terms of Service.
Company cannot guarantee exploitation of the Recordings, which will depend on consumer preference. There are no representations or warranties, express or implied, statutory or otherwise other than as set forth in these Terms of Service. Except as specifically set forth in these Terms of Service, Company shall have no obligations to you.
Company shall not be deemed in breach of these Terms of Service unless you have given Company notice, and Company has failed to cure such breach within 30 days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted hereunder, but rather you shall only be entitled to damages reasonably related to the breach concerned and no penalty shall be awarded to you.
IN NO EVENT WILL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, PRODUCTS, SERVICES OR ANY COMPANY CONTENT, NO MATTER WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL COMPANY’S CUMULATIVE LIABILITY TO YOU EXCEED $100.
This Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New York excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Terms of Service will be brought exclusively in courts located in the State of California, County of Los Angeles, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. You may not assign these Terms of Service (by operation of law or otherwise) without the prior written consent of Company and any prohibited assignment will be null and void. Company may assign these Terms of Service or any rights hereunder without your consent. The relationship of the parties under this Terms of Service is that of independent contractors, and this Terms of Service will not be construed to imply that either party is the agent, employee, or joint venturer of the other. You agree that this Terms of Service and the rules, restrictions and policies contained herein, and Company’s enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Company. This Terms of Service together with the rules and policies of Company constitutes the entire agreement between Company and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given (a) by Company via email (in each case to the address that you provide), (b) a posting on the Site, or (c) by you via email to support@Supercall.com to such other addresses as Company may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
Company reserves the right to refuse to provide its services to any customer for any or no reason.
SUPERCALL COPYRIGHT POLICY
Supercall respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Supercall will respond expeditiously to claims of copyright infringement committed using the Supercall service that are reported to the Supercall Designated Copyright Agent identified in the sample notice below.
Notice of Infringement
If you are a copyright owner, authorized to act on behalf of one or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Supercall service (the “Service”) by completing the following DMCA Notice of Alleged Infringement and delivering it to the Supercall Designated Copyright Agent. Upon receipt of Notice as described below, Supercall will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Service and/or termination of the applicable Supercall user’s account.
DMCA Notice of Alleged Infringement (“Notice”):
Deliver this Notice, with all items completed, to Supercall’s Designated Copyright Agent:
Notice of Wrongful Removal of Material
If you are a Supercall user and you believe that material you have uploaded to the Supercall Service has been wrongfully removed, you may file a counter-notification. If you did not have all of the rights to post the material at issue, you MUST NOT submit a counter-notification. Under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be liable for damages.
After Supercall receives your counter-notification, Supercall will forward it to the party who submitted the original claim of copyright infringement. Please note that when Supercall forwards the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. Supercall will not forward the counter-notification to any third party other than the original claimant. After Supercall sends out the counter-notification, the claimant must then notify Supercall within 10 business days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material in question. If Supercall receives such notification Supercall will be unable to restore the material. If Supercall does not receive such notification, Supercall may reinstate the material.
DMCA Counter-Notification (“Counter-Notification”):
Deliver this Counter-Notification, with all items completed, to Supercall’s Designated Copyright Agent: