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last update: March 14, 2011
Welcome, and thank you for your interest in NXTM LLC (referred to as "we", "us", or "Company"). Company owns and operates website properties located at whooznxt.com and elsewhere on the Internet (collectively referred to as the “Sites,” and the Sites together with any other products and services provided by Company, whether through the Sites or through third party sites or services provided by or on behalf of Company, are collectively referred to as the "Service"). The Service includes a platform and set of tools designed to permit artists to engage with fans, promote their content to fans, measure the effectiveness of such promotional efforts, manage their artist online presence and offer goods and merchandise for sale.
PLEASE READ THE FOLLOWING TERMS OF SERVICE AND ANY OTHER RULES AND GUIDELINES THAT MAY FROM TIME TO TIME BE COMMUNICATED TO YOU THROUGH THE SERVICE (COLLECTIVELY, THE "TERMS") CAREFULLY, AS THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND COMPANY. BY ACCESSING THE SITES, OR AVAILING YOURSELF OF THE SERVICE IN ANY MANNER, YOU ("YOU", "YOUR" OR "USER") AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND THE CASTING CALL TERMS AND CONDITIONS, INCLUDING AS EITHER MAY BE AMENDED BY COMPANY IN ITS SOLE DISCRETION FROM TIME TO TIME (AS NOTED AT THE TOP OF THE TERMS AS OF THE DATE "LAST UPDATED"). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY COMPANY, YOU SHOULD IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE.
You must be 18 to use the Service, and by using the Service, you represent that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under the age of 13. If you are using or opening an account on the Service on behalf of a company, entity, or organization (including an artist group entity such as a partnership) (collectively “Subscribing Organization”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Organization.
Artists will have login information, including a username and password. The Artist’s account is personal to the Artist and the Artist may not share its account information with, or allow access to your account by, any third party. As the Artist will be responsible for all activity that occurs under its access credentials, the Artist should take care to preserve the confidentiality of its username and password, and any device that the Artist uses to access the Service. The Artist will notify us of any breach in secrecy of its login information. If the Artist has any reason to believe that its account information has been compromised or that your account has been accessed by a third party, the Artist agrees to immediately notify Company by e-mail to . The Artist will be solely responsible for the losses incurred by Company and others (including other users) due to any unauthorized use of your account that takes place prior to notifying Company that your account has been compromised.
Company grants you permission to access and use the Service as set forth in these Terms, provided that: (i) you use the Service solely for your personal, private, noncommercial use; (ii) you do not reproduce, publicly display, publicly perform, or distribute any part of the Service, including any materials obtained from the Service, in any medium without Company’s prior written authorization, or as authorized in these Terms; (iii) you do not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms.
The Service is controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Service is appropriate or available for use in other locations, and access to the Service from territories where any content or features that are available on or through the Service may be illegal is prohibited. Those who access or use the Service from other jurisdictions do so at their own risk and are solely responsible for compliance with local laws.
Certain functions, areas and/or features of the Service may now or in the future have fees associated with them, including, without limitation, license fees to access or use certain features of the Service. When you use a function or initiate any action that has a fee you will have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time in our sole discretion. Company may choose to temporarily change the fees for Company's services for promotional events or new services without liability to users who have already paid higher fees for the same services, and such changes are effective immediately upon posting through the Service. Any changes for such fees will be effective as described in Section 10 (“Modification of the Terms”), below. Unless otherwise stated, all fees are in U.S. Dollars.
By Registering for the Service, you hereby consent to our disclosure or making available to other Artists your data and information available to us from your Social Network Sites.
The Service is owned and operated by Company. The content, visual interfaces, interactive features, information, graphics, design, artwork, photographs, images, screen shots, text, music, digitally downloadable files, video clips, trademarks, logos, product and character names, slogans, computer code, products, software, services, the compilation of the foregoing, and all other elements of the Service that are provided by Company (“Company Content”), are the valuable proprietary and intellectual property of Company or its licensors. The Company Content is protected by any and all applicable international, federal, and state laws, rules, orders and regulations relating to intellectual or proprietary property, including, but not limited to, patent, copyright, trademark and trade secret. You agree not to reproduce, distribute, display, publicly perform, revise, create derivatives of, copy, publish, sell, license, or edit any such Company Content except as permitted by the intended functionality of the Service and these Terms. Any attempt to download, print, publish, reproduce, publicly perform, or maintain a significant portion of the Company Content from the Service in violation of these Terms, to distribute copies of such content, information, or software, or to otherwise exploit the content, information, or software in violation of the intellectual property or proprietary rights of others is strictly prohibited by these Terms. Although Company makes efforts to insure that all material on the Service is correct, accuracy cannot be, and is not, guaranteed by Company.
From time to time, we may offer you the ability to sell products derived from Your User Submissions (as described in Section 5 below), such as digital downloads, ringtones, and other merchandise ("Artist Products"), to users of the Service via a so-called "webstore" or similar application that will exist on the Service ("Your Online Store"). In that connection, you appoint us as your non-exclusive, worldwide seller of your Artist Products through the Service, which includes the right to fulfill orders for Artist Products and deliver such Artist Products to end users. You agree to abide by any applicable policies, guidelines or rules on the Site which govern your use of Your Online Store.
You will upload to the Service all Artist Products that you want to us to offer for sale through Your Online Store in accordance with the applicable instructions on the Site. We may, in our sole discretion, determine whether your Artist Products comply with such instructions and are satisfactory for sale. You will be able to select the price for each Artist Product you choose to sell through Your Online Store, provided that the price you select is at least as much as the minimum price we have implemented for the type of Artist Product you wish to sell.
For each valid purchase of an Artist Product by an end user that is not returned, we will pay you an amount equal to Ninety Percent (90%) of the gross revenue received by us after deducting any costs incurred by us in connection with such sale, including, third party transaction fees and the following transaction expenses: (i) excise, sales, value-added or similar taxes, (ii) credit card and other payment processing costs (e.g., PayPal), (iii) returns, refunds and/or credits, (iv) shipping and handling costs to the extent not paid by the purchaser, and (v) any international taxes where applicable. You acknowledge and agree that the sale of Artist Products is speculative and nothing under these Terms acts as a guaranty by us that our exploitation of Artist Products shall generate any compensation to you. In the case of any sale of an Artist Product that is derived from a musical composition (such as a digital download of a recorded song) we shall have the right to withhold from your share of revenue all mechanical copyright royalties due to the owners of any musical composition unless and until you have provided us with evidence of licenses or consents, satisfactory to us, from the owners of the musical composition authorizing you to reproduce and sell copies of such musical composition.
If you earn less than the dollar amount set as the payment threshold ("Payment Threshold") in your account (currently, the minimum amount is Thirty Dollars ($30)), then the amount of such compensation will not be paid, but will accumulate in your Account until such time as it becomes equal to or greater than the Payment Threshold. We will make a payment to you to your Paypal account or such other payment method that we may utilize in our discretion from time to time, for the amount of such compensation no later than 60 days after the end of the month in which the total amount of accumulated compensation may reach or exceed the Payment Threshold. We may, in our discretion, send you a payment before your accumulated compensation reaches or exceeds the Payment Threshold. Currently, we only compensate users through payments to Paypal accounts. In order for you to receive payments from us, if any, you must have a valid Paypal account. For purchases made by end users via credit card or bank account deduction mechanism, final payment shall be deemed to have occurred at such time as the applicable credit card company or bank has fully settled the payment for the purchase, provided that we shall be entitled to an adjustment for user refunds and credits issued by us (or our licensees) in our sole discretion.
You will be solely responsible for the creation of each Artist Product that you upload to the Service, and will pay all costs associated with its creation, fulfillment and sale of each Artist Product. These costs include: (i) compensation due to artists, authors, co-authors, copyright owners and co-owners, producers and any other record royalty participants from sales or other uses of each Artist Product (for example, you must pay other members in your band or group who are entitled to share of revenues paid to you and you must pay all mechanical copyright royalties due to the owners of any musical composition used in your Artist Product); (ii) payments required by any agreement between you and any labor organization (such as unions or guilds); (iii) all studio, tape, editing, mixing, re-mixing, mastering and engineering costs; (iv) all costs of travel, per diems, facilities and equipment, and similar expenses; (v) any federal, state, or local taxes imposed on compensation paid to you from the sale of each Artist Product; (vi) the costs of Artist merchandise and other products sold and the fulfillment thereof; (vii) any payments to performing rights societies (e.g. ASCAP, BMI, SESAC and Sound Exchange); and (viii) agency fees and/or commissions payable with respect to securing, placement or serving advertisements or sponsorships and/or direct product sales,. If we advance any of the costs referred to in the prior sentence, we shall have the right to deduct such payments from monies otherwise due to you hereunder.
You retain all of your ownership rights in and to the original texts, files, images, photographs, artwork, audiovisual recordings, sound recordings, musical works, works of authorship, text postings, and other original materials owned and created by you which you upload within the Service (i.e., those materials created, owned and uploaded by you which do not incorporate any Company Content or any other third party materials) ("User Submissions"), including any trademarks, trade names, characters, and/or copyrights therein owned by you. Certain features of the Service may enable you to submit User Submissions for use in and in connection with the all or part of the Service, which User Submissions shall be subject to these Terms, the following terms (“Submission Rules”), and any additional terms that may be posted for a specific feature of the Service:
Company may delete any User Submissions that, in the sole judgment of Company, violates these Submission Rules or the Terms.
After posting your User Submissions to the Service, you continue to have the right to use your User Submissions in any way you choose, subject to these Terms and the license described herein (“User Submissions License”). By uploading, displaying, publishing, or otherwise posting any User Submissions on or through the Service (or any portion thereof), you hereby grant to Company a limited, non-exclusive (meaning that you are free to license your User Submissions to anyone else in addition to Company), sub-licensable (so that Company can use its affiliates, partners and other subcontractors such as Internet content delivery networks and wireless carriers to provide the Service), worldwide (because the Internet and Service are global in reach), fully-paid and royalty free (meaning that Company is not required to pay you for the use of the User Submissions you submit) license to use, modify (every effort will be made to preserve the integrity of your User Submissions, but occasionally a technical modification such as compressing the file is necessary), publicly perform, publicly display (for editorial or promotional purposes), reproduce, and distribute such User Submissions without the requirement to make payment to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Submissions.
You agree to indemnify and hold harmless Company and its parent, subsidiaries, affiliates or any related companies, licensors, licensees, suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other Users who use any User Submissions you upload to and make public on or via the Service or specifically share with any other Users, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Service; (ii) your User Submissions, including Company’s or any User’s reproduction, distribution, public performance, public display, modification, editing, adaptation, or other exploitation of your User Submissions consistent with these Terms; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Submissions infringes or violates any third party intellectual property rights, including any claims for the payment of so-called mechanical royalties, synchronization royalties, public performance royalties, or any other royalties claimed by any owner of any rights in any User Submissions. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without prior written consent from Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Company makes no representations about the reliability of the features of the Service, the Company Content, User Submissions, or any other feature of the Service, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material and/or systems will be at your own risk. Company makes no representations regarding the amount of time that any Company Content or User Submissions will be preserved. Company does not endorse, verify, evaluate or guarantee any information provided by users, including rankings, reviews, or other User Submissions and nothing shall be considered as an endorsement, verification or guarantee of any ranking, review or User Submissions. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company without the prior review and written approval of Company. Notwithstanding the foregoing, you may accurately disclose and describe your participation in the Service and your User Submissions (for example, describing and promoting your User Submissions on a personal blog or in emails).
THE SERVICE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SERVICE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND COMPANY'S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THE SERVICE'S RECORDS, PROGRAMS, OR SERVICES. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED FIVE DOLLARS (US $5.00). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. ALTHOUGH COMPANY MAKES EFFORTS TO INSURE THAT ALL MATERIAL ON THE SERVICE IS CORRECT, ACCURACY CANNOT, AND IS NOT, GUARANTEED BY COMPANY.
Company reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service. These Terms will identify the date of last update. Your use of any Service following any such change constitutes your agreement to be bound by the modified Terms. Material changes to these Terms will be effective upon the earlier of (i) Your first use of the Service following such change or (ii) 30 days from posting of such change. We encourage you to review these Terms prior to your use of the Service, even in the event of return visits.
Company may make changes to or discontinue any of the features, media, content, communities, products, software, or services available within the Service at any time, and without notice. The features, media, content, communities, products, software, or services on the Service may be out of date, and Company makes no commitment to update any materials on the Service.
Your use of the Service may bring you into contact with other users, and their User Submissions. You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Company (and Company's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
Company, in its sole discretion and for any reason or no reason, may terminate any user or user account (or any part thereof) you may have on the Service, disable your access to the Service (or any part thereof), discontinue the Service and any related services including support (or any part thereof), or terminate any license granted to you hereunder (including licensed rights to any content or materials downloaded by you during your use of the Service, including User Submissions), at any time, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Company shall not be liable to you or any third-party for any such termination, including for the unavailability of any User Submissions (including those uploaded by you). Company does not permit unlawful, infringing, fraudulent, or otherwise illegitimate activities on the Service, and reserves the right to terminate access to the Service, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Company may have at law or in equity.
If you are dissatisfied with the Service, then please let us know by e-mailing us at . Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) any term of these Terms, (iii) any policy or practice of Company in operating the Service, or (iv) any content or information transmitted through the Service, is to terminate your use of the Service. You may terminate your use by closing your account, discontinuing your use of any and all parts of the Service, or providing Company with notice of termination at .
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration. Notwithstanding the survival of Section 5 (User Submissions), your rights under any licenses granted to you by Company or by any other Company users pursuant to these Terms, including, but not limited to, those licenses in Section 5, shall terminate immediately upon termination by Company, and licenses granted to you with respect to any User Submissions removed from the Service will terminate immediately upon such removal.
Company respects the rights of copyright owners and expects Users of the Service to do the same. Therefore, infringing content may not be submitted to the Service or used, in whole or in part, in any User Submissions. If you upload User Submissions that contains any copyrighted work, including literary works, musical works, or sound recordings, or any combination thereof, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Service and grant the rights to any third parties, including Company and any other Users, contained in these Terms. In addition to being grounds for removal of your User Submissions, termination of your account, and any other remedy Company may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Company's designated copyright agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) A description of the copyrighted work that you claim has been infringed;
(iii) A description of where the material that you claim is infringing is located on the Service;
(iv) The address, telephone number, and/or electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
It is Company's policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Company will promptly terminate without notice the accounts of Users that are determined by Company to be “repeat infringers.” If Company receives more than three takedown notices regarding a User’s User Submissions, then that User will be considered a repeat infringer and their account will be terminated.
Company’s designated copyright agent to receive notifications and counter-notifications of claimed infringement can be reached at: .
THIS CONTACT INFORMATION IS ONLY FOR REPORTING ALLEGED COPYRIGHT INFRINGEMENTS. CONTACT INFORMATION FOR OTHER MATTERS IS PROVIDED ELSEWHERE ON THE SERVICE.
Both you and Company acknowledge and agree that no partnership is formed and neither of you nor Company has the power or the authority to obligate or bind the other. These Terms will be governed by and construed in accordance with the internal laws of the State of California without regard to conflicts of laws principles. By using the Service, you hereby agree that any and all disputes regarding these Terms will be subject to the federal, state and local courts for Los Angeles, California. These Terms operate to the fullest extent permissible by law. If any provision of these Terms is unlawful, void or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. Software that may be available in connection with the Service (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
The failure of Company to comply with the Terms and Conditions because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms. If Company fails to act with respect to your breach or anyone else's breach on any occasion, Company is not waiving its right to act with respect to future or similar breaches.
These Terms, together with those items made a part of these terms by reference, make up the entire agreement between us relating to the Service, and replaces any prior understandings or agreements (whether oral or written) regarding the Service. If a court finds any of these terms to be unenforceable or invalid, that term will be enforced to the fullest extent permitted by applicable law and the other terms will remain valid and enforceable. The Service and any promotions contained thereon is void where prohibited.
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