YONDER MUSIC, INC.

END USER LICENSE AGREEMENT

& MUSIC USAGE RULES

 

Last modified and effective as of: November 18, 2015

THIS YONDER END USER LICENSE AGREEMENT ("EULA" AND “AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT MADE SOLELY BETWEEN YOU ("YOU" AND "YOUR") AND YONDER MUSIC INC. AND / OR ITS AFFILIATES ("YONDER" "WE," "US," OR "OUR"). BY CLICKING THE "ACCEPT" BUTTON OR BY INSTALLING, COPYING OR USING THE YONDER APPLICATION, OR ANY WEB SITES OWNED OR CONTROLLED BY YONDER, YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. YOU ALSO ACCEPT THAT ANY THIRD PARTY BENEFICIARY, SUCH AS A DEVICE MANUFACTURER OR TELECOMMUNICATION SERVICE PROVIDERS, MAY ENFORCE THE PROVISIONS IN THIS AGREEMENT AND THE TERMS OF USE. THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF ANY VERSION OF THE DOWNLOADABLE YONDER MUSIC SOFTWARE (THE "SOFTWARE") AND ANY INFORMATION OR DATA OF ANY KIND, INCLUDING WITHOUT LIMITATION MUSIC FILES, ANY ARTWORK, TEXT, VIDEO, AUDIO, OR PICTURES SERVED THROUGH THE SOFTWARE OR RECEIVED FROM OR ON ANY WEB SITE OWNED OR CONTROLLED BY YONDER (COLLECTIVELY THE "CONTENT") (THE SOFTWARE AND THE CONTENT ARE TOGETHER REFERRED TO AS THE "APPLICATION" AND “MUSIC SERVICE”; THE "SOFTWARE" INCLUDES ALL VERSIONS FOR USE WITH MUSIC FILES). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE APPLICATION AND YOU MUST STOP THE REGISTRATION PROCESS AND PROMPTLY CEASE USING AND DESTROY ANY COPIES OF THE SOFTWARE IN YOUR POSSESSION. FAILURE TO ABIDE BY THE TERMS OF THIS AGREEMENT MAY RESULT IN TERMINATION OF YOUR ACCESS TO THE APPLICATION, THE RELATED YONDER MUSIC SERVICE, AND/OR ANY PART THEREOF.

 

YONDER MAY CHANGE OR UPDATE THIS EULA AT ANY TIME UPON REASONABLE NOTICE TO YOU, INCLUDING VIA EMAIL, BY NOTICE TO YOUR YONDER USER ACCOUNT OR BY NOTICE PRESENTED DURING USE OR INSTALLATION OF THE SOFTWARE.

1.              SOFTWARE LICENSE; MUSIC AUTHORIZATION & USAGE RULES

1.1          Software License. Conditioned upon your ongoing full compliance herewith and the payment of the applicable fee (either by you directly via purchase of a device from Yonder, or indirectly via obtaining a device already fully-paid-up by an associated device maker or network operator), Yonder grants to you as the original owner of your device during the Term (defined below) a limited, non-transferable, non-assignable, non-exclusive, non-commercial, personal and revocable license, without right of sublicense (a) to download (or otherwise obtain through authorized Yonder devices) and install one copy of the Software on your device, if such device was not already pre-loaded with the Software, (b) register and activate the Software on your device (such device with activated Software, your “Yonder Device”), (c) to use the Software to download, manage, search for, discover and play Music on your Yonder Device, and (d) to use the Software to access, use and interact on your Yonder Device, (all of the foregoing, the “Software License”). For clarity, “Software” includes (x) the software application (in object-code form) and related documentation provided to you in connection herewith; (y) any and all updates; and (z) any other information whether delivered orally or in tangible form furnished by Yonder to you to facilitate your use of delivered materials and updates. Yonder may revoke the Software License at any time for any non-compliance with the terms of this EULA.

1.2          Music Authorization.  Other than as specifically permitted during a free trial period, and conditioned upon your ongoing full compliance herewith and the payment of the applicable fee (either by you directly via payment to Yonder or indirectly via obtaining a device already fully-paid-up by an associated device maker or network operator), Yonder hereby authorizes you during the Term to permanently download and play Music on your Yonder Device (the “Music Authorization”), subject to the following usage restrictions: You may only (a) download and store Music to your Yonder Device via the Software and/or obtain Music from other Yonder approved devices, and (b) play Music on your Yonder Device via the Software. Your use of Music for any purpose not expressly included as part of the foregoing Music Authorization is hereby expressly excluded and prohibited under this EULA. You may not authorize, encourage or allow any Music acquired through the Service to be reproduced, modified, displayed, performed, transferred made available, communicated, distributed or otherwise used, in whole or in part, except as authorized in this EULA. The Music Authorization is personal to you, and may not be transferred or assigned by you, and the Music Authorization may only be used by you for non-commercial purposes. Yonder may revoke the Music Authorization at any time for any non-compliance with the terms of this EULA.

1.3          Intellectual Property Ownership & Restrictions. Yonder (for itself and on behalf of its licensors and other suppliers, including Content Providers) reserves all intellectual property rights in the Yonder Music Service (including the Magic Library). You may not use the Application or the Software for any illegal purpose. Yonder retains all title and ownership rights in and to the intellectual property. Except as expressly stated in this Agreement, Yonder does not grant any express or implied right or license to you under any patent, copyright, trademark, or trade secret rights of Yonder. The Yonder Music Service (including the Magic Library) are protected by intellectual property laws. You agree that the Content Providers are intended third-party beneficiaries under this EULA and have the right to enforce the provisions of this EULA that directly concern the Music in which they have rights.  You shall not (a) reverse engineer, decompile, disassemble, decrypt or modify any portion of the Yonder Music Service, including attempting to circumvent or tamper with any Security Technology (as defined below), (b) assist or enable any third party to accomplish any of the actions in the foregoing subsection (a), (c) remove, alter, or obscure any copyright, trademark, patent or other proprietary rights notices that appear on or in the Yonder Music Service, (d) disclose, directly or indirectly, the Yonder Music Service, in whole or part, to any third party, except as expressly authorized hereunder, or (e) use or exploit the Yonder Music Service in any way except as expressly authorized pursuant to Section 1.1 (Software License) and Section 1.2 (Music Authorization) above. The “Magic Library” means all sound recordings, musical compositions and other content in Yonder’s music catalog.

1.4          Content Ownership.  Other than as expressly provided herein, this EULA gives you no express or implied license to the Content, including without limitation, any right to use, sell, rent, copy, distribute, broadcast, modify, perform or publicly display any Content. Yonder complies with copyright law and expects its users to do the same. You may not use the Application to help you infringe the copyrights of any third party. Unauthorized use, copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights and a violation of the law. You agree that you shall only use the Application and Music Service in a manner that does not violate any third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Application and Music Service, including, but not limited to, applicable restrictions concerning copyrights and other intellectual property rights. In the event of any third party claim that your use of the Application infringes any third party's intellectual property rights, you will be solely responsible for the investigation, defense, settlement and discharge of any such claim.

1.5          Linked Entities. The Application and Music Service may contain links to various third party web sites, advertisements and other resources ("Linked Entities"). These Linked Entities (other than web properties owned or operated by Yonder such as http://www.yondermusic.com) are not under the control of Yonder and Yonder is not responsible or liable for the content, communications or materials of any Linked Entities. The inclusion of any link does not imply endorsement by Yonder of the Linked Entity or any association with its operators. You are responsible for adhering to the applicable terms of service for any Linked Entity. You are solely responsible and liable for any interactions you may have with such entities, advertisers, their sponsors and other third parties.

1.6          Third Party Terms. The Software includes certain technology licensed to Yonder by third parties, and pursuant to Yonder’s licensing agreements with such third parties, Yonder is obligated to include certain legal provisions for the benefit of such third parties in this EULA. Accordingly, you agree to comply with any and all of the terms and conditions set forth in Annex 1 (Third Party Terms and Conditions) as may be attached hereto.

1.7          Updates. Yonder reserves the right in its sole discretion to provide bug fixes, updates and upgrades of the Software (“Updates”), and to require you to install Updates to replace your version of the Software, though it has no obligation to provide you with any Updates. You acknowledge that the Software may automatically request, receive and install Updates.

 

 

2.              DATA COLLECTION

2.1          Privacy Policy. Yonder respects your privacy and the use and protection of your personal information. All information provided by you to Yonder (as provided in Section 3.4 (Registration, Activation, and De-Activation) below), and all information about you collected by Yonder (as provided in Section 2.2 (Data Collection) below), are subject to the Yonder Privacy Policy, which is hereby incorporated by reference in its entirety; a copy of which can be found here http://yondermusic.net/resources/legal/privacy/.

2.2          Data Collection. You authorize and permit Yonder to collect, use and (as appropriate) report to third parties certain recorded tracks play-count, music fingerprint, geographic and other information, all as set forth in and subject to the restrictions of the Yonder Privacy Policy.

2.3          Online Connection Required for Reporting. Since Yonder pays music rights-holders based on the number of plays of recorded tracks on your Yonder Device, the Software needs to regularly connect to the servers of the Yonder Music Service to provide play-count reports. If you do not connect your Yonder Device to the Internet after a specified maximum period of time (as may be determined by Yonder in its sole discretion from time to time), then the Software may limit or stop playback of Music until such connection is made.

3.              SERVICE REQUIREMENTS AND LIMITATIONS

3.1          Magic Library. While Yonder attempts to provide its Music on a worldwide basis, so everyone in the Yonder ecosystem can access their favorite music, as a practical matter due to limitations on our rights to make some Music available, different Yonder device owners in different countries may have access to different subsets of the Magic Library.

3.2          Take Downs. Yonder and its Content Providers may in their sole discretion from time to time temporarily or permanently remove certain recorded tracks from the Magic Library, due to a variety of possible reasons including editorial policies, copyright issues, artist relations, etc. However, if you have already downloaded any such recorded track, the recorded track will remain playable on your Yonder Device.

3.3          Security Technology. Yonder uses security, tamper resistance and digital rights management technology (“Security Technology”) in the Software and Music in order to protect the Music from piracy, to ensure that Content Providers are paid for use of the Music, and to provide you with the unique freedoms and compelling user experience of the Yonder Music Service. Any modification or tampering of the Security Technology can seriously harm Yonder, Yonder’s partners (including music artists) and Yonder users. Accordingly, Yonder reserves the right to disable, modify, replace or otherwise limit the Software, Music and the Application as necessary to respond to breaches or vulnerabilities of the Security Technology, or to breaches by you of this EULA. Yonder will use reasonable efforts to notify you of any such actions, and to attempt to restore normal usage.

3.4          Registration, Activation and De-Activation. Yonder requires you to set up a Yonder user account with either a social media login, such as Facebook, Twitter or Instagram, or a user name and password, and to register and activate your device in connection with this user account, in order to use and access the Yonder Music Service as authorized herein Setting up a Yonder user account may require you to provide certain information, which will be used and handled by Yonder in compliance with the Yonder Privacy Policy. Yonder reserves the right to deny, reject or cancel a user account, and/or to not activate or deactivate your device, if the information you provide is not true or you are attempting to activate a device in a country different from the country in which it is authorized for sale. Your user name and password are personal to you and you may not allow any others to use your user name or password under any circumstances. You agree to immediately notify Yonder if you become aware of or believe there may be unauthorized use of your user name or password, or any other need to deactivate your user name or password, including due to security concerns. You may deactivate your Yonder Device by contacting customer care at help@yondermusic.com.

3.5          Online Connection Required for Certain Features. Certain Application features, such as, download of Music and certain search, discovery and social features - require an online connection to the servers of the Yonder Music Service in order to work. Your use of the Application is also subject to the terms and conditions of the Yonder Music Service Terms of Use, which is hereby incorporated by reference in its entirety; a copy of which can be found here http://yondermusic.net/resources/legal/termsandconditions/

 

4.              WARRANTIES & DISCLAIMERS; LIMITATION OF LIABILITY

4.1          Warranties By Device Owner. You represent and warrant that (a) all information you have provided, including in connection with registration and activation of your Yonder Device and user account, has been truthful and accurate, and you will keep such information current and up-to-date, (b) you are the original owner of your Yonder Device, and purchased and are using your Yonder Device for your own personal and non-commercial use, (c) your use of your Yonder Device and the Yonder Music Service is in full continuing compliance with all of the terms and conditions herein and (d) you will deactivate your Yonder Device(s) before transfer of ownership or long-term possession to a third party. You agree to indemnify, defend and hold Yonder (and its partners, licensors and suppliers, including Content Providers) and to hold harmless from and against any claims, actions, losses, expenses, damages and costs (including reasonable attorneys’ fees) resulting from any breach of this EULA (including, for the avoidance of doubt, any documents incorporated by reference herein such as the Yonder Music Service Terms of Use or the Yonder Privacy Policy) by you. Yonder reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with Yonder in the defense of any such claim, action, settlement or compromise negotiations, as reasonably requested by Yonder.

4.2          NO WARRANTIES BY YONDER. THE APPLICATION, YONDER MUSIC SERVICE AND ALL RELATED INFORMATION AND MATERIALS IS PROVIDED AND/OR LICENSED TO YOU “AS IS” AND “WITH ALL FAULTS,” AND YONDER AND ITS PARTNERS, LICENSORS AND SUPPLIERS (INCLUDING CONTENT PROVIDERS) DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE, WITH RESPECT THERETO, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. YONDER DOES NOT REPRESENT THAT THE YONDER MUSIC SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE YONDER MUSIC SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. 

4.3          LIMITATION OF LIABILITY. IN NO EVENT SHALL YONDER OR ITS PARTNERS, LICENSORS AND SUPPLIERS (INCLUDING CONTENT PROVIDERS) BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR COST OF COVER ARISING OUT OF OR RELATING TO THE INSTALLATION, OPERATION, USE, OR INABILITY TO USE THE YONDER MUSIC SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF YONDER AND ITS PARTNERS, LICENSORS AND SUPPLIERS (INCLUDING CONTENT PROVIDERS) ARISING OUT OF THIS EULA, WHETHER FOR BREACH OF CONTRACT OR TORT OR OTHERWISE, SHALL NOT IN THE AGGREGATE EXCEED THE AMOUNT YOU DIRECTLY PAID TO YONDER FOR THE SOFTWARE (IF APPLICABLE), OR, IF NO SUCH AMOUNT WAS PAID, THEN USD $10. YOU AGREE THAT THE FOREGOING REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

4.4          THIRD PARTY SERVICES; CERTAIN JURISDICTIONS. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS IN THIS ARTICLE 4 SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY INFORMATION, PRODUCTS OR SERVICES SOLD OR PROVIDED BY THIRD PARTIES AND RECEIVED BY YOU THROUGH THE YONDER MUSIC SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD PARTY SERVICES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE DISCLAIMERS, LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

5.              TERM AND TERMINATION

5.1          Term and Termination. This EULA shall be effective on the date of your registration and activation of your Yonder Device (the “Effective Date”) and shall continue in effect for so long as you remain the original owner of your Yonder Device (the “Term”), unless earlier terminated. This EULA shall automatically expire in the event you effectively transfer ownership or long-term possession of your Yonder Device to another person. This Agreement (and your license) shall terminate automatically and immediately if you fail to comply with any of the limitations described in this EULA. No notice shall be required from Yonder to effectuate such termination. In addition, Yonder reserves the right to terminate this Agreement and discontinue your access to the Application and Music Service at any time for any reason, and with or without notice. Upon termination of this Agreement for any reason you must immediately destroy all copies of the Application.

Yonder may immediately suspend your access to, or use of, the Music Service (including the Music) under this EULA without any notice or liability of any kind in the event Yonder believes in its sole discretion that you are in breach of any of the terms and conditions of this EULA (including, for the avoidance of doubt, any documents incorporated by reference herein such as the Yonder Music Service Terms of Use or the Yonder Privacy Policy) or that the Security Technology has been compromised. Further, Yonder may terminate this EULA in its reasonable discretion after such suspension, without liability of any kind, upon notice to you, which notice may be by email, to your Yonder account, or otherwise.

5.2          Effect of Termination. In the event of a termination of this EULA: (a) all licenses granted to you hereunder and the Music Authorization immediately terminate; (b) you shall immediately stop using the Software, Music and Service for any purposes whatsoever; (c) you shall destroy all copies of the Music on your Yonder Device, and (d) Yonder may in its sole discretion disable or otherwise limit the Software and Music. The following provisions shall survive the termination or expiration of this EULA: Section 1.3 (Ownership and Restrictions), Section 1.4 (Third Party Terms), Section 3.3 (Security Technology), Article 4 (Warranties; Limitation of Liability), Section 5.2 (Effect of Termination) and Article 6 (General).

6.              MISCELLANEOUS

6.1          No Assignment. You may not assign, delegate, or otherwise transfer any of your rights or obligations under this EULA. You shall deactivate your Yonder Device in the event you sell and/or transfer your Yonder Device to a third party, and assist Yonder in determining if your Yonder Device has been transferred to a third party, as may be reasonably requested. For clarity, Yonder may assign or transfer any of its rights and obligations hereunder without restriction. The provisions of this EULA will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

6.2          General. This EULA will be construed in accordance with and governed by the laws of the State of New York, without reference to choice of law principles, including all matters of construction, validity and performance. The parties hereby irrevocably and unconditionally submit (to the extent permitted by law) to the jurisdiction of the courts of the State of New York located in the City and County of New York and the U.S. District Court for the Southern District of New York for any legal action or proceeding arising out of this letter. No delay or failure by Yonder to exercise or enforce at any time any right or provision of this EULA will be considered a waiver thereof or of Yonder’s right thereafter to exercise or enforce each and every right and provision of this EULA. No waiver will constitute a continuing or subsequent waiver. If any provision of this EULA is held to be illegal, invalid or unenforceable, the remaining provisions of this EULA shall be unimpaired and remain in full force and effect. No modification, amendment, renewal, extension or waiver of this EULA will be binding unless expressly agreed to by Yonder. You may contact Yonder by writing to Yonder Music, Inc., Attention: Legal, 1460 Broadway, Suite 7007, New York, NY 10036, USA, or emailing help@yondermusic.com regarding any questions about this EULA or about the Music Service. The headings and captions contained in this EULA shall not be considered to be a part hereof for purposes of interpreting or applying this EULA, but are for convenience only. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. This EULA, together with other documents that may be expressly referred to herein, constitute the sole and entire understanding between and among Yonder and you with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties with respect to such subject matter.