Terms and Conditions of Service
Last modified: 14 March 2018
1. Terms and Conditions Governing Use
1.1 This document sets out the terms and conditions governing the use of products, services, software, and web sites (collectively the “Services”) of Castle Hill Music center trade as Music Phantom, a company incorporated in the state of New South Wales in Australia, hereinafter referred to as Music Phantom. You agree that your use of the Services will be subjected to the terms and conditions set out in this document (the “General Terms”).
1.2 In addition, you agree your use will be subjected to the terms of any applicable Legal Notices (the “Specific Terms”). Where Specific Terms apply to a Service, these will be accessible for you to read either within or through your use of that particular Service.
1.3 If there is any conflict between the General Terms and the Specific Terms, the Specific Terms shall take precedence in relation to the particular Service.
1.4 You acknowledge and agree that the General Terms and the Specific Terms (collectively the “Terms”) form a legally binding agreement between you and Music Phantom in relation to your use of the Services and that you have read through the Terms carefully and agree to comply with them. You acknowledge and agree that you may not use the Services if you do not accept the terms.
2. Acceptance of the Terms
2.1 You can accept the Terms by a) clicking to accept or agree to the Terms, where this option is available, or b) by actually using the Services. In the latter case, you understand and agree that Music Phantom will treat your use of the Services as acceptance of the Terms from that point onwards.
2.2 You may not use the Services and may not accept the Terms if a) you are a minor or otherwise legally impermissible to enter into agreement with Music Phantom, or b) you are barred from receiving the Services under the laws of any applicable countries including Australia, the country in which you are resident or the country from which you use the Services.
3. Music Phantom’s Provision of the Services
3.1 Music Phantom may have subsidiaries and affiliated legal entities around the world (the “Affiliated Companies”) and some of the Services may be provided by the Affiliated Companies on Music Phantom’s behalf. You acknowledge and agree that the Affiliated Companies will be entitled to provide the Services to you.
3.2 You acknowledge and agree that the form and nature of the Services which Music Phantom provides may change from time to time without prior notice to you as Music Phantom innovates to provide the best possible experience for you.
3.3 As part of its continuing innovation, you acknowledge and agree that Music Phantom may, at its sole discretion and without prior notice to you, permanently or temporarily stop providing the Services or any features within the Services to you or to users generally. If you are unhappy with such change, you may stop using the Services at any time and you need not specifically inform Music Phantom when you stop using the Services.
3.4 You acknowledge and agree that Music Phantom may, at its discretion, set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service at any time.
3.5 You acknowledge and agree that if Music Phantom disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
4. Users’ Usage of the Services
4.1 You agree to use the Services only as permitted by the Terms and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including but not limited to any laws regarding export control or data protection/privacy).
4.2 You acknowledge and agree that you may, as a result of or through your use of the Services, use a service or download a piece of software or purchase goods or services, which are provided by Third Parties; and your use of these other services, software or goods may be subject to a separate agreement between you and the Third Party concerned. The Terms do not affect your legal relationship with these Third Parties and Music Phantom is not responsible in any way for your legal relationship with these Third Parties.
4.3 You agree not to access (or attempt to access) any of the Services by any means other than through Music Phantom provided interface, unless you have been specifically allowed to do so in writing by Music Phantom. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including but not limited to use of scripts or web crawlers) and shall ensure that you comply with any instructions set out in the Services.
4.4 To access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Music Phantom will always be current, accurate, and correct.
4.5 You agree that you will not engage in any activity that interferes with or disrupts the Services or the servers and networks which are connected to the Services.
4.6 You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose unless you have been specifically permitted to do so in writing by Music Phantom.
4.7 You agree that you are solely responsible for any breach of your obligations under the Terms and for the consequences, including any loss or damage which Music Phantom may suffer, of any such breach and will fully indemnify Music Phantom for any loss or damage Music Phantom may suffer as a result of your breach of any of the Terms.
4.8 You acknowledge and agree that any textual or numeric identifier (including but not limited to username, account name, profile ID or account number) chosen by you or assigned to you may be changed, re-assigned or removed by Music Phantom at its sole discretion. Music Phantom will, however, inform you vie email before changing, re-assigning or removing such identifier.
5. Content in the Services
5.1 You acknowledge and agree that all information (including but not limited to written text, data files, audio files, computer software, photographs, videos, images, graphics or other multi-media content; whether related to products or services and including but not limited to opinions or views re the products or services; hereinafter referred to as the “Content”) which you may have access to as part of, or through your use of, the Services belongs to either Music Phantom or the person or entity from which the Content originated (the “Third Party Content Provider”).
5.2 You acknowledge and agree that Content from any Third Party Content Provider is the sole responsibility of the Third party Content Provider from which the Content originated and Music Phantom does not in any way endorse any Content, even if the Third Party Content Provider of such Content is remunerated by Music Phantom and for the avoidance of doubt, any views or opinions appearing in the Services does not represent the views and opinions of Music Phantom.
5.3 You acknowledge and agree that Content presented to you as part of the Services, including but not limited to, advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by Music Phantom or Third Party Content Providers. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been given written permission to do so by Music Phantom or the relevant Third Party Content Provider.
5.4 You acknowledge and agree that while Music Phantom reserves the right, it shall have no obligation to filter, pre-screen, flag, review, modify, refuse or remove any or all Content, including content posted by you, from any Service; and that it is in Music Phantom’s sole discretion whether or not to provide tools to filter out indecent or offensive content.
5.5 You understand that by using the Services you may be exposed to Content that you may find indecent, offensive or objectionable and hence, you hereby acknowledge and agree that you use the Services at your own risk.
5.6 You acknowledge and agree that you are solely responsible for (and that Music Phantom has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions and will indemnify Music Phantom for any loss or damage suffered as a result of such actions in accordance with clause 17.
5.7 You further warrant that any content uploaded, transmitted or displayed by you while using the Services is either owned by you or of your own original creation and that you have the appropriate licences to upload or post any Content not owned or created by you.
6. Intellectual Property and Related Rights
6.1 You acknowledge and agree that Music Phantom or its licensors or the Third Party Content Providers own all intellectual property and any related interest, title or rights which may subsist in the Services (whether or not those rights are registered and wherever in the world those rights may exist).
6.2 You acknowledge and agree that the Services may contain information which is deemed confidential by Music Phantom and that you shall not use or disclose such information in any way without Music Phantom’s prior written consent.
6.3 Nothing in the Terms gives you a right to use any of Music Phantom’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, whether animated or still (the “SMPG Brand”), unless you have agreed otherwise in writing with Music Phantom.
6.4 If you have been given an explicit right in writing by Music Phantom to use any of the SMPG Brand, then you agree that your use of such features shall be in compliance with the terms and conditions of the written permission, any applicable provisions of the Terms, and any Music Phantom’s brand guidelines as updated from time to time.
6.5 You acknowledge and agree that you shall not alter, remove, or obscure any proprietary rights notices (including but not limited to copyright, patent and trade mark notices) or marks which may be affixed to any Content or contained within the Services.
6.6 You acknowledge and agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or licensee of such marks, names or logos unless you have express written permission from Music Phantom or the owner/licensee of such marks, names or logos to do so.
6.7 Other than as set forth in Clause 8, Music Phantom acknowledges and agrees that it obtains no right, title or interest from you or your licensors under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether or not those rights are registered or not, and wherever in the world those rights may exist). You agree that you are responsible for protecting and enforcing those rights and that Music Phantom has no obligation to do so on your behalf unless you have agreed otherwise in writing with Music Phantom.
7. Licence Granted by Music Phantom
7.1 Music Phantom grants you a personal, royalty-free, worldwide, non-assignable and non-exclusive licence to use Music Phantom generated Content and Music Phantom provided software (the “Software”) to access the Services provided to you by Music Phantom. This licence is for the sole purpose of allowing you to use and enjoy the Services as provided by Music Phantom, in accordance with the Terms, in particular Clauses 5.3, 7.2 and 7.3.
7.2 You may not and hereby undertake not to permit anyone else to copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law or you have been given written permission by Music Phantom to do so.
7.3 You may not assign or sub-license your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software unless you have received written permission from Music Phantom to do so.
8. Licence Granted by Users
8.1 Music Phantom agrees that you retain any intellectual property and related rights you already hold in the Content which you submit, post or display on or through, the Services.
8.2 You agree that by submitting, posting or displaying the content, you hereby grant to Music Phantom a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.
8.3 You understand and agree that Music Phantom, in performing the required technical steps to provide the Services to users, may a) distribute or transmit your Content in various media and over various public networks; and b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media and hereby grant Music Phantom a licence to take these actions.
8.4 You agree that the licence granted in Clause 8.1 includes a right for Music Phantom to make such Content available to other companies, organisations or individuals (the “Third Parties”) with whom Music Phantom has relationships for the provision of the Services, and to use such Content in connection with the provision of the Services.
8.5 You warrant and represent to Music Phantom that you have all the rights, power and authority necessary to grant the licences pursuant to this clause 8.
9. Third Party Content
9.1 The Services may include hyperlinks to other web sites or content or resources. You understand and agree that Music Phantom has no control over any web sites, content or resources which are provided by Third Parties.
9.2 You acknowledge and agree that Music Phantom is not responsible for the availability of any such external sites, content or resources, and does not endorse or support any advertising, products or other materials on or available from such web sites, content or resources.
9.3 You acknowledge and agree that Music Phantom is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites, content or resources, or as a result of any reliance placed by you on the completeness, timeliness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites, content or resources.
10. Account Security and Passwords
10.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. As such, you agree that you will be solely responsible to Music Phantom for all activities that occur under your account.
10.2 If you become aware of any unauthorized use of your password or of your account, you agree to notify Music Phantom immediately at [email protected].
11. Privacy and Data Protection
11.1 You agree and acknowledge that Music Phantom may use your personal data in accordance with Music Phantom’s privacy policies.
12. Software Upgrades
12.1 You understand and agree that the Software which you use may automatically download and install updates from time to time from Music Phantom. These updates are designed to enhance, improve and further develop the Services and may take the form of patches, bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates and permit Music Phantom to deliver these to you as part of your use of the Services.
12.2 You understand and agree that to the extent any of the Software is provided by Third Parties, you will use the Software in accordance with any additional terms such Third Parties may impose regarding use of the software.
13.1 You acknowledge and agree that some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information available through the Services.
13.2 You understand and agree that the manner, mode, scope and extent of advertising by Music Phantom on the Services are subject to change without specific notice to you.
13.3 In consideration of Music Phantom granting you access to and allowing you use of the Services, you expressly agree that Music Phantom may place advertising on the Services in accordance with this Clause 13.
14.1 You may terminate the Terms with Music Phantom by a) notifying Music Phantom in writing at any time or b) where Music Phantom has made this option available to you, closing your accounts for all of the Services which you use. If you choose to terminate by notifying Music Phantom in writing, your notice should be sent to [email protected].
14.2 Music Phantom may at any time, terminate the Terms with you if a) you have breached any provision of the Terms (or have acted in a manner that indicates clearly that you are unable or do not intend to comply with the provisions of the Terms); b) Music Phantom is required to do so by law (including but not limited to where the provision of the Services to you is or will become unlawful); c) Third Party Content or Software Provider with whom Music Phantom offered the Services to you has terminated its relationship with Music Phantom or ceased to offer the Services to you; d) Music Phantom will no longer be providing the Services to users in the country in which you are resident or from which you use the service; or e) the provision of the Services to you by Music Phantom is, in Music Phantom’s opinion, no longer commercially viable.
14.3 The Terms will continue to apply until terminated by either you or Music Phantom in accordance with this clause.
14.4 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Music Phantom have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by the termination, and in particular, clause 20.8 shall survive Termination and continue to apply to such rights, obligations and liabilities indefinitely.
15. EXCLUSION OF WARRANTIES
15.1 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
15.2 IN PARTICULAR, Music Phantom, ITS AFFILIATED COMPANIES, AND ITS LICENSORS EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY TO YOU THAT:
- YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
- YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR FREE FROM ERROR
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE, TIMELY OR RELIABLE, OR
- THAT ANY DEFECTS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
15.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Music Phantom OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
15.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
15.5 Music Phantom EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
15.6 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT Music Phantom’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND Music Phantom’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. LIMITATION OF LIABILITY
16.1 SUBJECT TO CLAUSE 15.6, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Music Phantom, ITS AFFLIATED COMPANIES, AND ITS LICENSORS, THIRD PARTY CONTENT AND SOFTWARE PROVIDERS SHALL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
- ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY CONTENT OR ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY BUSINESS, ADVERTISER OR SPONSOR WHOSE CONTENT, PRODUCT OR ADVERTISING APPEARS ON THE SERVICES;
- ANY CHANGES WHICH Music Phantom MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
- YOUR FAILURE TO PROVIDE Music Phantom WITH ACCURATE ACCOUNT INFORMATION; OR
- YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
16.2 THE LIMITATIONS ON Music Phantom’S LIABILITY TO YOU IN PARAGRAPH 16.1 ABOVE SHALL APPLY REGARDLESS OF WHETHER Music Phantom HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
17.1 EXCEPT AS SET OUT IN CLAUSE 17.2 AND SUBJECT TO CLAUSE 17.3, Music Phantom HAS NO OBLIGATION TO INDEMNIFY YOU IN ANY WAY. SAVE AS SPECIFIED IN CLAUSE 17.3, Music Phantom’S ONLY OBLIGATION IN RESPONSE TO ALLEGED COPYRIGHT INFRINGEMENT THAT COMPLIES WITH APPLICABLE LAWS IS TO TERMINATE THE ACCOUNTS OF REPEAT INFRINGERS.
17.2 IF Music Phantom IS REQUIRED BY LAW TO INDEMNIFY YOU, IN THE EVENT THE INFRINGING CONTENT ORGINATES FROM THIRD PARTIES, Music Phantom’S INDEMNITY IS LIMITED TO THE AMOUNT Music Phantom RECOVERS FROM THE RELEVANT THIRD PARTY PROVIDER.
17.3 UPON THE NOTICE OF ANY INFRINGEMENT CLAIM, IF Music Phantom REASONABLY DEEMS SUCH CLAIM LIKELY, Music Phantom SHALL HAVE THE RIGHT TO EITHER A) PROCURE THE RIGHT SO USERS CAN CONTINUE TO USE THE CONTENT, B) MODIFY THE CONTENT SO IT BECOMES NON-INFRINGING, OR C) REMOVE THE AFFECTED CONTENT FROM THE SERVICE.
17.4 YOU WILL INDEMNIFY Music Phantom AGAINST ANY LOSS OR COST WHICH Music Phantom SUFFERS AS A RESULT OF ANY INFORMATION POSTED BY YOU ON ANY INTERACTIVE FEATURES CONTAINED IN THE SERVICES AND ANY LOSS OR DAMAGE INCURRED BY Music Phantom RESULTING FROM CLAIMS ARISING FROM A) YOUR MODIFICATION OF THE CONTENT, B) YOUR CONTINUED USE OF CONTENT THAT Music Phantom HAS NOTIFIED YOU SHOULD NOT BE USED, OR C) YOUR BREACH OF CLAUSES 4.6, 5.3 AND/OR 5.7.
17.5 ANY OBLIGATEION TO INDEMNIFY PURSUANT TO THIS CLAUSE 17 ARISES ONLY IF: A) THE INDEMNIFYING PARTY OR WHERE APPLICABLE, THE RELAVENT THIRD PARTY CONTENT OWNDER OR PROVIDER, IS GIVEN IMMEDIATE AND COMPLETE CONTROL OF THE INDEMNIFICATION CLAIM AND B) THE INDEMNIFIED PARTY COOPERATES IN A TIMELY MANNER AND DOES NOT MATERIALLY PREJUDICE THE CONDUCT OF SUCH CLAIM.
18.1 You acknowledge and agree that Music Phantom may amend the Terms, be it the General Terms or Specific Terms, from time to time.
18.2 You understand and agree that if you use the Services after the date on which the General Terms or Specific Terms have changed, such use will be treated by Music Phantom as your acceptance of the amended General Terms or Specific Terms.
19. Governing Language
19.1 If you have been provided with a translation of the English language version of the Terms by Music Phantom, you acknowledge and agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Music Phantom.
19.2 If there is any conflict between the English language version of the Terms and a translation, then the English language version shall govern.
20.1 The Terms constitute Music Phantom and your entire understanding regarding your use of the Services, but excluding any services which Music Phantom may provide to you under a separate written agreement, and supersedes any prior agreements between you and Music Phantom in relation to the Services.
20.2 In agreeing to the Terms, you have not relied on and have no remedy in respect of any statement, warranty or representation made by Music Phantom except in the case of fraud or as set forth in Clause 15.6.
20.3 If any of the Terms is found to be illegal or unenforceable by a court of law, this will not affect the validity and enforceability of the remaining Terms.
20.4 You acknowledge and agree that if Music Phantom delays or fails to exercise or enforce any legal right or remedy under the Terms or which Music Phantom has the benefit of under any applicable law, this will not affect Music Phantom’s right to exercise such right or remedy on any other occasion and that those rights or remedies will still be available to Music Phantom.
20.5 You acknowledge and agree that Music Phantom’s Affiliated Companies shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on, or rights in favour of them. Other than as set forth in this Clause, no other person or company shall be third party beneficiaries to the Terms.
20.6 You acknowledge and agree that Music Phantom shall not be held liable in any way for any loss or damages you may suffer due to circumstances beyond its control.
20.7 You agree that Music Phantom may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
20.8 The Terms shall be governed by the laws of Australia without regard to its conflict of laws provisions. Both of us agree to submit to the exclusive jurisdiction of the courts located within the state of New South Wales to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Music Phantom shall have the right to apply for injunctive relief or any equivalent type of urgent legal remedies in any jurisdiction.