Terms and conditions

1. ACCEPTANCE

1.1  This “Agreement” governs the relationship between Djaminn B.V., registered with the Dutch Chamber of Commerce under number 72411783 (“Djaminn”, “we” or “us”) and any person who uses our mobile app and any related players, tools, data, software and APIs (jointly referred to as the “App”).

1.2  By using the App, you agree to be bound by this Agreement. Djaminn may modify or revise the terms of the Agreement from time to time.

1.3  You must be eighteen (18) years old or older to use the App, or the applicable age of majority in your jurisdiction. If you are under eighteen (18) or the age of majority in your jurisdiction, you must be at least thirteen (13) years old and have your parent(s)’ or legal guardian(s)’ permission to use the App. If you are under eighteen (18) or the applicable age of majority in your jurisdiction, you must get your parent or guardian to read this Agreement and agree to its terms before you use the App or provide any information to us. Please review this Agreement carefully with your parent or guardian so that you both understand how the App works, and what restrictions apply to your use of the App.

1.4  To the extent you have entered into this Agreement as a ”Consumer” (that is, a natural person acting outside his trade or profession), this Agreement does not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of any mandatory consumer protection provisions in the law of your country of residence.

2. INTERPRETATION

2.1 Capitalized terms used throughout this Agreement shall have the following meaning:

  • “Agreement” has the meaning as set out in clause 1.1;
  • “App” has the meaning as set out in clause 1.1;.
  • “Content” means any materials displayed, provided or made available through the App including but not limited to Musical Works, music, sound, photographs, video or other material contained in the App;
  • “Consumer” has the meaning as set out in clause 1.4;
  • “Djaminn” has the meaning as set out clause 1.1;
  • “Intellectual Property Rights” means all copyrights, neighbouring rights, patents, trademarks, domain names, design rights, database rights, trade names, know-how, rights protecting goodwill and reputation and all other rights of the same or similar effect in each case in any jurisdiction worldwide;
  • “Musical Works” means the copyrighted musical works embodied within sound recordings and videos synchronized with sound recordings;
  • “Personal Data” means any data about you from which you can be identified, either (a) from that data; or (b) from that data and other information to which we have or are likely to have access, including data in our records as may be updated from time to time;
  • “Policies” means our various policies and other terms that apply to specific functionalities, products or services within the App;
  • “Sound Samples” has the meaning given in clause 5.1;
  • “Submit” means posting, uploading, storing, transmitting, exchanging or otherwise making available Content on or through the App;
  • “User” means any person with access to the App and/or who uses the App.

2.2 The use of the word “including” throughout this Agreement shall be deemed to be followed by “without limitation”. References to one gender include all genders and references to the singular include the plural and vice versa.

3. YOUR ACCOUNT

3.1  Access to the App and its functionalities is only possible after registering an account.

3.2  Registering an account entails that you provide us with your email address, username and password. Your email address and any other information provided by you when registering your account shall be treated in accordance with our [Privacy Policy].

3.3  You are responsible for maintaining the confidentiality and security of your username and password at all times. You are responsible for any activity originating from your account, whether or not such activity was authorised by you.

3.4  You may terminate your account at any time as described in clause 8 below. We may terminate your account in accordance with clause 4.12 and 8.1.

4. USE OF THE APP

Content (ownership & licenses)

4.1  You retain ownership of the Content you Submit to the App and the Intellectual Property Rights pertaining thereto.

4.2  Any Content made available on the App by Users other than by you remains the property of those Users. Such content may be subject to Intellectual Property Rights. You do not in any way acquire any Intellectual Property Rights pertaining to such Content. You also do not acquire any rights or permission to use the Content of other Users except as explicitly provided for in this Agreement.

4.3  By Submitting Content to the App, you grant us a worldwide, perpetual, irrevocable, non- exclusive, royalty-free, sub-licensable and transferable licence to use, reproduce, distribute, adapt, display and perform such Content solely for the purpose of performing, promoting and enhancing the App. Djaminn shall not use your Content outside of the App.

4.4  By Submitting Content to the App, you grant to other Users a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable and transferable licence to use, reproduce, distribute, adapt, display and perform such Content within the context of the App. Users do not have the right to use your Content outside of the App.

4.5  You are free to delete the Content you Submitted through the App from your account at any time. Content shall be deleted and removed from the App within a reasonable timeframe after you have deleted it. Pursuant to the licenses granted under clause 4.3 and 4.4 however, your Content may still be used by Djaminn or other Users, even after you have deleted your Content or your account, if such Content was already used by other Users to create new Content prior to you deleting it. For the avoidance of doubt: this means that if other Users of the App have used your Content to create new Content, then that new Content may stay on the App even after you have deleted your Content or your account.

4.6  You are responsible for the Content that you Submit to the App. You own all the rights to your Content (including any Musical Works embodied therein) or have obtained all necessary permissions to use your Content on the App. You have not entered into with any agreement with any collective rights organization or any music publisher in any country or jurisdiction which would prevent you from entering into this Agreement or Submitting Content to the App. Djaminn is not responsible for making payments to any organization or publisher in connection with the publication of your Content on the App.

4.7  You shall not Submit any Content that:

4.7.1  is unlawful, abusive, defamatory, pornographic or obscene, or that promotes or incites violence, illegal acts or hatred;

4.7.2  contains materials protected by Intellectual Property Rights owned by any third party, unless you have permission from that party to Submit such Content to the App under the terms of this Agreement;

4.7.3  that violates any right of privacy or is contrary to any applicable laws and regulations; and/or

4.7.4  is otherwise contrary to this Agreement.

4.8  We reserve the right to remove Content from the App if we believe that such Content is in violation of any of the provisions of this Agreement, including clause 4.7.

4.9  If you believe that certain Content is in violation of Intellectual Property Rights owned by you or others, or which you believe is defamatory, pornographic or obscene or that otherwise violates the Agreement or applicable law, you may report this to us by email at [email protected].

User restrictions

4.10  Djaminn grants you a limited, non-exclusive, non-transferable, non-sublicensable right to use the App. You do not in any way acquire any Intellectual Property Rights pertaining to the App.

4.11  The use of the App is subject to various restrictions. You shall not:

  • copy, sell, resell, assign, licence, distribute, transmit, publicly display, rent, lease, lend, export, publish or otherwise reproduce or make available the App or any parts thereof;
  • recreate, adapt, modify, decompile, disassemble, localise, port and/or reverse engineer the App or any parts thereof; or use the App for any purpose other than is permitted under the Agreement.

4.12 We reserve the right to suspend or terminate your account if we believe that you have breached any of the above set out provisions or if you have otherwise violated this Agreement or any applicable laws, rules or regulations.

5. LICENCE TO SOUND SAMPLES

5.1  Djaminn makes available various sound samples on the App (“Sound Samples”). Djaminn owns the Intellectual Property Rights to the Sound Samples. Djaminn grants you a worldwide, non- exclusive, royalty-free licence to use Sound Samples, solely for the purpose of creating Content that is Submitted to the App.

5.2  The Intellectual Property Rights in Sound Samples that are part of any Content you Submitted to the App remain exclusively vested in Djaminn at all times.

6. LIABILITY

6.1 Nothing in this Agreement is intended to limit or exclude any liability that cannot be excluded or limited by law. To the extent permitted by law, Djaminn is not liable for any losses or damages arising from Content Submitted to the App by Users or by conduct of Users that is defamatory, offensive or that is otherwise illegal.

7. CHANGES TO THE APP

7.1  We may, from time to time if reasonably necessary, upgrade, modify, suspend, discontinue or terminate the App or any part thereof, temporarily or permanently, and in its entirety or with respect to individual territories only. Such upgrades, modifications, suspensions, discontinuations or terminations may prevent you from accessing any part of the App. We will keep you informed of any changes we make in this regard. You can terminate the Agreement at any time pursuant to clause 8.3 if such changes are not acceptable to you.

7.2  We may also change, withdraw or introduce new features to the App from time to time. We will keep you informed of any changes we make in this regard. You can terminate the Agreement at any time pursuant to clause 8.3 if such changes are not acceptable to you.

8. TERMINATION

Termination by Djaminn

8.1  Djaminn may with immediate effect upon giving you notice, terminate your account if you have violated or acted inconsistently with any terms or conditions set out in this Agreement (see also clause 4.12).

8.2  Upon termination of your account pursuant to clause 8.1, all rights and/or licences granted to you under this Agreement shall terminate with immediate effect.

Termination by you

8.3  You can terminate your account at any given time by selecting the ‘delete account’ option in the App.

8.4  After termination of your account, the Content you have Submitted to the App will be deleted from our servers. However, Content that was used by Djaminn or other Users in accordance with clause 4.3 and 4.4 of this Agreement prior to such termination, will remain online.

Survival of terms

8.5  Clauses 4, 5 and 6 of this Agreement shall continue to apply after the termination of your account and/or the termination of the Agreement, irrespective of the reason for termination.

9. MISCELLANEOUS

Entire Agreement

9.1  This Agreement constitutes the entire understanding between you and us with respect to the App. This Agreement supersedes all prior arrangements, whether oral or written, between you and us.

Assignment

9.2  Djaminn is free to engage any service providers, subcontractors and/or agents in connection with the performance of its obligations under this Agreement and the functionalities of the App. You may not assign your rights or obligations under this Agreement in whole or in part, to any third party without our prior written consent.

Force Majeure

9.3  We shall not be liable for non-performance, error, interruption or delay in the performance of our obligations under the Agreement (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the App’s contents if this is due to an event or failure which is beyond our reasonable control. To the extent you have entered into this Agreement as Consumer, this clause 9.3 only applies in case of a non-attributable non-performance due to force majeure under the law applicable to the Agreement by virtue of clause 9.7.

Severability

9.4  If any court or governmental entity holds that any provision of this Agreement is invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected. Any such invalid or unenforceable provision shall be replaced or be deemed to be replaced with a provision that is valid and enforceable and reflects as closely as possible the intent of the invalid or unenforceable provision. No

Waiver

9.5  If you fail to comply with this Agreement and we do not take immediate action, this does not constitute a waiver of any rights we may have.

Applicable law

9.6  This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands (including the applicable consumer protection provisions under national and (implemented) EU law), excluding its conflict of laws principles. To the extent you have entered into this Agreement as a Consumer, this choice of law does not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1, including any mandatory consumer protection provisions in the law of your country of residence.

Jurisdiction

9.7 Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by the District Court of Amsterdam, the Netherlands. However, to the extent you have entered into this Agreement as a Consumer you will have one month to opt for jurisdiction of a court that is competent according to applicable law, after we have informed you writing that we intend to invoke the jurisdiction that is chosen in this clause.