Terms of Service (updated April 18, 2014)
This agreement is between Smule, Inc. (“Smule”) and users of Smule’s products, services, and websites (“You”).
1. Your Acceptance
- Although Smule may attempt to notify You when major changes are made to the Terms of Service, You should periodically review the most up-to-date version at www.smule.com/termsofservice. Smule may, in its sole discretion, modify or revise the Terms of Service at any time, and You agree to be bound by such modifications or revisions.
2. Community Guidelines
You may be permanently banned from the Service if You do any of the following:
- Attack or demean individuals or groups,
- Engage in predatory behavior, stalking, harassment, or intimidation,
- Engage in offensive speech,
- Engage in bullying.
You also may be banned if you take any other action that Smule determines is harmful to the Service or the use of the Service by others, or is in violation of applicable law.
3. Smule Accounts
- In order to access some features of the Service, You will have to create a Smule account. You may not use another user's account without permission. When creating your account, You must provide accurate and complete information. You are responsible for the activity that occurs on your account, and You must keep your account password secure. You must notify Smule immediately of any breach of security or unauthorized use of your account.
- Smule will not be liable for any losses to You caused by any unauthorized use of your account.
4. General Use of the Service
Smule grants You permission to access and use the Service as set forth in the Terms of Service, provided that:
- You agree not to alter or modify any part of the Service.
You agree not to use the Service for any of the following commercial uses unless you obtain Smule's prior written
- the sale of access to the Service; or
- the sale of advertising, sponsorships, or promotions placed on or within the Service, including any content shared on the Service.
- In your use of the Service, You will comply with all applicable laws.
- Smule reserves the right to discontinue any aspect of the Service at any time.
5. Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of musical content (“Content”):
- Content on the Service, and the trademarks, service marks and logos on the Service, are owned by or licensed to Smule, subject to copyright and other intellectual property rights under the law.
- You may access Content for your personal use solely as intended through the provided functionality of the Service and as permitted under the Terms of Service. You shall not copy, distribute, broadcast, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of Smule or the respective licensors of the Content. Smule and its licensors reserve all rights not expressly granted in and to the Service and the Content.
- You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
- You understand and acknowledge that You may be exposed to 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 Smule with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Smule, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6. Your Content; License to Smule
- As a Smule account holder, You may submit Content to the Service. You understand that Smule does not guarantee any confidentiality with respect to any Content you submit.
- You shall be solely responsible for your own Content and the consequences of submitting your Content on the Service. You affirm, represent, and warrant that You own or have the necessary licenses, rights, consents, and permissions to publish Content You submit; and You license to Smule all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to the Terms of Service.
- You retain all of your ownership rights in your Content. However, by submitting Content to Smule, You hereby grant Smule a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, monetize, distribute, modify, prepare derivative works of, display, and perform the Content in connection with the Service and Smule's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to access your Content through the Service, and to use, reproduce, distribute, modify, prepare derivative works of, display and perform such Content as permitted through the functionality of the Service and under the Terms of Service.
- Many of Smule’s products are interactive, and, as such, may be modified by other Users of the Service without Your prior approval. Such modifications may enhance or detract from your Content and You. You acknowledge and agree that other users of the Service may so modify your Content at any time following submission thereof and assume the risks related thereto.
- You are free to remove your Content at any time. You understand and agree, however, that Smule may retain, but not display, distribute or perform, server copies of your Content that have been removed or deleted by You. Further, You understand and agree that any Content you have submitted, as thereafter modified by any other user of the Services, which has been previously downloaded by any other user or person will remain within the control of such user or person.
- You further agree that Content You submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless You have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Smule all of the license rights granted herein.
- Smule expressly disclaims any and all liability in connection with Content. Smule does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Smule will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Smule reserves the right to remove Content without prior notice.
7. Account Termination Policy
- Smule will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to have infringed the Terms of Service.
- Smule reserves the right to decide whether Content violates the Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. Smule may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of the Terms of Service.
8. Virtual Currency Policy
You may earn virtual currency within the Service. Earned virtual currency is credited to your customer account and Smule provides You a license to use such virtual currency. Accordingly, You have no ownership or other property interest in the virtual currency, and all rights in and to the virtual currency shall forever be owned by and enure to the benefit of Smule. You may only redeem virtual currency to purchase goods within the Service. Upon redemption of any virtual currency by You, the amount available in your virtual currency account is reduced by the amount redeemed. Virtual currency is not redeemable for cash, except as required by applicable law. Your customer account and any unused balances in that account may not be given or sold and are not assignable or transferable. Accordingly, You may not trade, give, sell or attempt to sell virtual currency or other product items for “real” money, or exchange those items or currency for value of any kind outside of the Service. Any gift, sale, transfer or assignment is prohibited and void and will subject a Your virtual currency account to termination. Smule reserves the right to suspend, terminate, or revoke the use of virtual currency or Your virtual currency account at any time in its discretion, with or without cause or prior notice, subject to applicable law. Smule also reserves the right to terminate the license to your account and all of the virtual currency in it if such account has been inactive for 180 days.
9. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
If You are an intellectual property owner or agent thereof and believe that any Content on the Service infringes any rights that You own or represent, then You may submit a notification of claimed infringement and we will respond accordingly. Please see www.smule.com/copyright for further information on how to submit a notification of claimed infringement. The terms and conditions set forth at www.smule.com/copyright, including our Repeat Infringer Policy, are hereby incorporated into and made a part of these Terms of Service.
10. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SMULE ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. SMULE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SMULE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT MADE AVAILABLE VIA THE SERVICE. SMULE DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SMULE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
11. Limitation of Liability
IN NO EVENT SHALL SMULE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SMULE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOU ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT SMULE SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by Smule from its facilities in the United States of America. Smule makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, You agree to defend, indemnify and hold harmless Smule, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of the Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive the Terms of Service and your use of the Service.
13. Ability to Accept Terms of Service
You affirm that you are either 13 years of age or older, an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service.
The Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Smule without restriction.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service does not give rise to personal jurisdiction over Smule, either specific or general, in jurisdictions other than California. The Terms of Service shall be governed by the laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between You and Smule that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in San Francisco, California. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any provision of the Terms of Service shall be deemed a further or continuing waiver of such provision or any other provision, and any failure by Smule to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision. Smule reserves the right to amend the Terms of Service at any time without notice. It is your responsibility to review the Terms of Service for any changes. Your use of the Service following any amendment of the Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND SMULE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.