Effective Date: September 1, 2018
The Service is available only to individuals who are at least 18 years old. You represent and warrant that if you are an individual, then you are of legal age to form a binding contract and that the information you submit to us is true, accurate, and complete, and you agree to always maintain it that way.
Rules and Conduct.
By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any user submission, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
- you know is false, misleading, untruthful or inaccurate;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
- exploits people in a sexual or violent manner;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party; or
The Service is Not Guaranteed.
Company does not guarantee that any Content or user submissions will be made available, or remain in perpetuity, on the Site or through the Service. Additionally, Company has no obligation to monitor the Site, Service, Content, or user submissions. However, Company, in its sole discretion, reserves the right to control what submissions by you, if any, get uploaded to, published for download, and/or streamed on MyNyimbo.com.
When considering what Content to include on the MyNyimbo.com platform, Company looks closely at the artistic, technical, and commercial viability of each submission to ensure that is in keeping with Company’s standards and mission.
Personal Information – Fan.
As a condition to each such Artist’s right to receive such Fan Information, Company requires each Artist to agree to the terms set forth in the next section of this Agreement. However, you acknowledge that Company has no control over the use of the Fan Information by the Artists, and you further acknowledge and agree that Nyimbo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the Artists’ use of such Fan Information.
Personal Information – Artist Obligations.
In certain instances, a user of the Service may volunteer Fan Information to you as a means of receiving news, updates, marketing information, etc. As a condition to receiving such Fan Information, you acknowledge and agree that you will not disclose, rent, or sell any Fan Information to any third party, and you will use the Fan Information only in connection with the Artist’s mailing list or Artist Subscription, in order to provide fans with general information and news about the Artist, such as upcoming shows, new Music or other Content delivered in connection with your Artist Subscription. You further agree that any e-mail or other communication sent to the Artist’s mailing list or sent in connection with the Artist Subscription will comply with e-mail marketing laws and include a mechanism by which the recipient can unsubscribe from the mailing list, along with clear instructions on how to do so (i.e. a functioning “opt-out” mechanism). You will promptly implement a recipient’s request to opt-out of receiving e-mails from you and will not send any further e-mails to such opting-out recipient.
Purchases Made on the Website.
You may purchase Digital Content from an Artist through the Site.
All sales of Digital Content are final (except where prohibited by law), unless otherwise determined by Nyimbo. If you do not receive the Digital Content or otherwise have an issue with the Digital Content delivered, please contact Nyimbo support (email@example.com) with your request and proof of payment, and we will rectify the situation as soon as possible. At Nyimbo’s sole discretion, you may be credited or refunded for the Digital Content.
Your total price for Digital Content will include the price of the product plus any applicable sales tax; such sales tax is based on your location and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states or countries where digital goods are taxable.
Content you purchase in a Transaction cannot be guaranteed to be available to you through the Site perpetually. Users bear all risk from the denial of access to any Content purchased through the Service. Because there is a possibility that we may be required to deny you access to previously purchased Content, we encourage you to promptly download any Content you purchase through the Site to your own devices so that you will retain control and possession of such Content even if we are required to remove the Content from the Service.
Royalty/Revenue Payout to Artists.
Company, in consultation with you, will set the prices for your products and services that are charged through Transactions through the Site. Company shall be entitled to a thirty (30) percent share of the revenue you receive from Transactions (the “Revenue Share”), which shall be calculated on your gross revenue from Transactions, not including any Transactions for which you or we provide a refund. You shall be solely responsible and liable for, and Company shall have no responsibility or liability for, any third-party payment processor fees (“Fees”), bad debts (such as credit card returns or fraud), disputed payments, and refunds, except as provided in this Agreement.
Nyimbo may withhold any taxes, duties, charges or levies on payments by Nyimbo to you pursuant to this Agreement as may be required by applicable law, rule or regulation. Nyimbo shall remit any such withheld taxes, duties, charges or levies to the appropriate tax authority. Nyimbo will pay you the gross proceeds we receive from the sale of Digital Content, minus the applicable Revenue Share and any applicable Fees (the “Artist Payout”).
Sales revenue will be credited to your user account as sales are generated. Payments to you will be made within fifteen (15) calendar days after the close of each quarter-annual period ending March 31st, July 31st, September 30th, and December 31st, provided that the Artist Payout for the prior period has reached $50 or more. In the event the Artist Payout has not reached $50 for a given period, the balance will be carried over to successive periods until such time as the balance exceeds $50.
Intellectual Property Rights – Artists.
The Service provides Artists with the ability to upload Digital Content owned or controlled by such Artists to the Site, including but not limited to sound recordings (“Sound Recordings”), videos synchronized with Sound Recordings and other audiovisual works (collectively, “Music Videos”), and the musical works embodied within Sound Recordings and Music Videos (“Musical Works” and, collectively with Sound Recordings and Music Videos, the Artist’s “Music”). Company will not have any ownership rights in any elements of an Artist’s Music, however, Company needs the following license to perform the Service:
Each Artist uploading Music to the Service grants Company the worldwide, non-exclusive, royalty-free, right and license to: (i) reproduce, distribute, publicly perform (including on a through-to-the-audience basis and by means of a digital audio transmission), publicly display, create derivate works of, communicate to the public, synchronize and otherwise exploit (collectively, “Exploit”) (1) the Artist’s Music and perform the Service on the Artist’s behalf (e.g., reproduce, transcode, copy and store the Artist’s Music on computer servers owned and/or operated by or on behalf of Company or its authorized sublicensees and distributors, and publicly perform, transmit, synchronize, stream, distribute, and playback the Artist’s Music) using any technologies or methodologies now known or hereafter developed, and (2) Exploit all associated copyrightable works or metadata, including, without limitation, song lyrics and musical notations, album cover artwork, photographs, graphics, and descriptive text (“Artworks”) in connection with the Service); (ii) allow users of the Service to receive public performances and public displays of the Artist’s Music and Artworks and to reproduce the Artist’s Music and Artworks on any and all devices owned or controlled by the user for non-commercial purposes and receive performances and displays of same; and (iii) reproduce, use, and publish, and to permit others to reproduce, use and publish, the name(s), trademarks, likenesses, and personal and biographical materials of the Artist, in connection with the provision of the Service.
To enable Company to Exploit your Music pursuant to the above provisions, you hereby grant to Company the worldwide, non-exclusive, royalty-free, sublicensable, and transferable right to use, distribute, reproduce, copy, and display your trademarks, service marks, slogans, logos or similar proprietary rights (collectively, the “Trademarks”) solely in connection with the Service or in the marketing, promotion or advertising of the service, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.
By uploading any Music or Artworks to the Site:
- you represent and warrant that the use or other exploitation of your Music and/or Artworks by Company and its authorized sublicensees and distributors and/or by users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
- you represent and warrant that, to the extent you are the songwriter of any or all of the Musical Works embodied in your Sound Recordings or Music Videos, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any performing rights organization (“PRO”), whether based in the United States (e.g., ASCAP, BMI or SESAC) or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to Company for the public performances and communications to the public of your Musical Works, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the public performance or communication to the public of your Musical Works.
- you represent and warrant that no fees of any kind shall be due from Company to any third party, including, but not limited to, any union, guild, non-featured vocalist or musician, engineer or producer, for the use or re-use of your Music as authorized under this Agreement.
- you are to every extent responsible for paying any other rights holders that you might (producer, featured artist etc.) have and any applicable taxes according to the tax laws of your country.
If any agreement you have entered into with any third party, including, but not limited to a PRO, music publisher, union or guild, whether by law or contract, prohibits you from granting company the right and license set forth in this Agreement and making the representations and warranties set forth in the four paragraphs immediately above, then you are prohibited from uploading your music to the Service and shall be responsible for indemnifying and holding company harmless from and against any and all claims arising from the exploitation of your music on the Service, including all court costs and legal fees.
Our Right of Termination.
We reserve the right to amend, discontinue or terminate our Services under this Agreement, at any time. We also reserve the right to terminate your access to the Service without notice at any time, with or without cause, effective immediately, which may result in the forfeiture and destruction of all information associated with your use of the Service, including, without limitation, any access to any Music you may have purchased through the Service.
Company makes no representations concerning any Content contained in or accessed through the Site, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service.
The Service is provided “as is” and “as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed.
Electronic Communications Privacy Act Notice (18 U.S.C. §§ 2701-2711): Company makes no guaranty of confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.
You agreea to indemnify and hold harmless the Company, its officers and directors, employees and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by you to comply with any covenant or agreement made by you herein or in any other document furnished by you to any of the foregoing in connection with this transaction.
Limitation of Liability.
In no event shall Company, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Service (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) one-hundred U.S. dollars ($100.00). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
MANDATORY DISPUTE RESOLUTION.
Any controversy or dispute arising out of or relating to this Agreement must first be submitted to arbitration by the American Arbitration Association, United States Arbitration & Mediation Midwest, Inc (USAM), or JAMS, in accordance with the rules promulgated by the chosen association. All hearings shall be held in or around Philadelphia, Pennsylvania, or another location mutually agreeable to the parties, before at least one arbitrator who is a licensed attorney with significant experience resolving intellectual property and commercial contract disputes. The parties hereto reserve the right to reject any arbitrator who is employed by or affiliated with the opposing party.
Integration and Severability.
You may contact Company at the following address: support@MyNyimbo.com.