General Terms and Conditions for use of the website MyMusic

Last updated: 16th of may 2008

Recital

MY MUSIC AG, Niederwall 9, 33602 Bielefeld, Germany (hereinafter referred to as “MyMusic“) operates interactive online offers for people interested in music (hereinafter: “MyMusic Network“). This Network enables the User to contact, and communicate with, other users. The aim is to provide in particular artists and musicians from all genres of music, agencies and management companies, clubs and discotheques as well as all types of companies or locations involved with music with the possibility of presenting themselves to other users (hereinafter referred to as the “Community“), and for this purpose to offer photos, their own songs and videos as well as other information on themselves. The users may form their own groups with particular focus of interests within the Community.

1. General

1.1 The prerequisite for being able to use the MyMusic Network and the services connected with it (hereinafter referred to as “Applications”) is a registration by the User. This registration requires the User to acknowledge these General Terms and Conditions.

1.2 These General Terms and Conditions shall apply to all contracts on the use of the Applications between the User and MyMusic. Furthermore, the General Terms and Conditions regulate conduct among the Users, by obligating the User to comply with certain conduct requirements. Further conditions may apply to some Applications, whose acknowledgement by the User is the prerequisite for the Activation of such extended Applications. MyMusic shall inform the User in due time of the necessity of acknowledging additional conditions.

1.3 General terms and conditions which contradict, deviate from, or amend the present General Terms and Conditions will not be acknowledged by MyMusic, unless MyMusic expressly agrees to do so in writing in an individual case.

1.4 Any information, notifications and messages are to be sent to the following contact address: info@mymusic.ag

2. Conclusion of the contract

2.1 In general, the contract will be concluded upon registration, in compliance with the rules hereinafter. Only after registration has been completed and MyMusic has issued a confirmation (hereinafter referred to as “Activation”) shall the user be entitled to use the Applications.

2.2 Any person of full age or represented by a legal representative can be a User (so that legal entities may also register). Legal representation of a person means that, for instance for minors, as a rule the parents will have to give their approval of the utilisation. However, a minor may also register if he/she has the necessary capacity to understand the consequences of his/her actions. This in turn means that he/she must be able to understand that he/she will be responsible for his/her actions while using the Applications. This shall in particular apply in case third parties assert any claims against MyMusic due to such person’s conduct. However, this also means that he/she must be able to understand that his/her personal data can be accessed by the Community.

2.3 The User has the right to choose a user name deviating from his/her natural name (hereinafter referred to as “Nickname”). Upon registration, even if the User chooses a Nickname, he/she shall be obligated to provide the personal data necessary for the implementation of the contract truthfully and completely. The User shall be obligated to inform MyMusic immediately of any changes in such data. The User shall be obligated to provide his/her personal data truthfully and completely throughout the period of duration of the user contract, and to update them in case of any changes.

2.4 MyMusic shall have the right to stop the registration process, and to refuse a User admission to the utilisation of the site, if doubts arise regarding the correctness of the data provided by the User, or if the User has already registered for utilisation under a different Nickname, or if MyMusic has terminated a previous user contract with the User. MyMusic shall not be obligated to provide reasons for stopping the registration procedure. MyMusic will not arbitrarily refuse a User utilisation of the Applications.

2.5 MyMusic shall confirm the User the conclusion of the registration proceedings by email. The User must finalise the registration procedure through an activation link contained in this email. Only after this will the User be entitled and able to use the Applications.

2.6 After the registration has been successfully finalised, the User shall have the right to use the Applications within the framework of their availability and of the technical possibilities. There is no unrestricted claim to use the Applications of the MyMusic Network.

2.7 MyMusic shall have the right to exclude a User from the Applications and to freeze the access if the User has provided incorrect or incomplete information upon registration or has not immediately provided notification of changes in his/her data.

2.8 The User shall be obligated to log into the MyMusic Network each time prior to using the Network. The User shall be obligated to keep secret the password to be used by him/her, and to not disclose it to third parties. The User shall in particular not have the right to provide third parties with the opportunity of using the Applications. MyMusic shall have the right, but not the obligation, to set rules for the choice and updating of passwords. Violations of these rules shall give MyMusic the right to terminate the user contract. The User shall be responsible for any infringements committed through his/her Account, unless the infringement is beyond his/her control. The User shall be obligated to immediately inform MyMusic should there be any indication to assume that a third party uses his/her Account. In such cases, the User shall be obligated to immediately choose a new password.

2.9 In spite of the verifications described above, MyMusic is unable to ensure that another User actually exists. Therefore, in cases of doubt, the User himself/herself will be responsible for confirming the identity of another user.

3. Termination

3.1 MyMusic shall at all times have the right to cease to provide the MyMusic Network and the Applications offered.

3.2 MyMusic shall have the right to exclude the User from using the services, without being obligated to provide reasons for this decision.

3.3 The User shall at all times have the right to terminate the concluded user contract without providing reasons for this decision (hereinafter referred to as “Deregistration”). For this purpose, the User may either use the button “Deregistration”, or send an email. After the User has deregistered, MyMusic shall delete the data, articles and Content which were stored by the User. It will then no longer be possible to contact other users through the MyMusic Network. It will in particular no longer be possible to reach the User via the MyMusic Network. Alternatively, MyMusic shall have the right to maintain the Account, either completely or in part, in an anonymised form, so that a connection to the User can no longer be established.

3.4 The above regulations shall not affect either party’s right to terminate the contract extraordinarily without prior notice due to an important reason.

4. Price and payment

4.1 Registration for MyMusic is free of charge for the User. If special Applications as defined in No. 1.2. are or become liable to costs, MyMusic shall inform the User accordingly in due time, in compliance with statutory provisions.

4.2 The MyMusic Network enables the User to also conclude contracts with other users. MyMusic shall not be liable for any contents of the contracts concluded between the users which may deviate from the above regulations.

5. Services provided by MyMusic

5.1 The MyMusic Network serves as a platform for the establishment of contacts between users. MyMusic does not participate in the communication between the users, unless violations of rights require an intervention by MyMusic.

5.2 The MyMusic Network does not primarily serve for the conclusion of contracts among users, while certain Applications may deviate from this principle.

5.3 The MyMusic Network provides the users with various possibilities of using the website and the services connected with it (“Applications“):

“MyMusic – Profile“ – the Application “Profile” enables the User to load data, files, texts, images, graphics, songs, videos and other content (hereinafter referred to as “Content”) into the memory space provided to him/her by MyMusic (hereinafter referred to as “Account”), so that other users can access them;
“MyMusic – Communication/Postbox” – the Application “Communication/Postbox” enables the User to exchange messages with other users via the MyMusic Network, to leave guest book entries and comments with other users, or to contact them through the “HOLLA” function;
“MyMusic – Groups” – the Application “Groups” makes it possible to found, administer and use groups, where the members may communicate within the framework of the group’s objectives;
“MyMusic – Others”

5.4 If MyMusic extends the scope of the provided services, the User shall have the right – within the framework of availability and technical possibilities – to use the additional new Applications as well.

5.5 The User does not have a right to unrestricted use of all Applications at any time. The User is aware that there may be temporary failures of availability due to maintenance work, technical problems or special demands for certain Applications. In as far as this is technically possible and reasonable, MyMusic shall inform the User in advance of any restricted possibilities to access Applications.

6. Prohibitions of use

6.1 The User shall not have the right to commercially use other users’ data which he/she can access as a User, unless he/she has concluded corresponding agreements with the other users.

6.2 Within the framework of the MyMusic Network, it is prohibited to send unrequested emails to a large number of users without their permission (spam). In cases of infringements upon this prohibition, MyMusic shall terminate the user contract without prior notice. My Music expressly reserves the right to assert any damages incurred.

6.3 The User shall not have the right to copy other users’ Content which obviously violates third-party rights. The User is obligated to inform MyMusic of any such facts he/she may become aware of.

6.4 The utilisation of search engines, search robots or other computer programmes for the methodical spying-out or collecting of the data available in the Network, is prohibited within the MyMusic Network.

6.5 In particular, but without limitation, the following activities may not be conducted through the User’s Account, even if the User executes them from outside the MyMusic Network:

Using the MyMusic Networks while bypassing security mechanisms,
Using the MyMusic Network through use of security holes,
Attempts to bypass the security mechanisms of the MyMusic Network or to use security holes,
All types of hacking activities, also in so far as they pertain to other users’ accounts,
Use of brute-force searches, i.e. extensive trial-and-error of all possible solutions in order to bypass security mechanism.

MyMusic shall have the right to already terminate the user contract without prior notice, even if there only is reason to assume that such measures may be carried out or prepared through the User’s Account.

7. Rights to the Content

7.1 MyMusic is neither able nor obligated to examine the Content placed by users for violations of rights, unless MyMusic is aware of such Content or refuses acknowledgement of such Content in a grossly negligent way. If a third party makes MyMusic aware of a possible violation of rights by the User, MyMusic shall, notwithstanding the rights under No. 9, be entitled to immediately delete any placed Content, and, if applicable, to freeze access to the Account and to the questioned Content, without having to examine the justification of a complaint. The User is aware that MyMusic has a corresponding statutory obligation. The User shall not be able to base any claims against MyMusic on such freeze or deletion.

7.2 It is prohibited to place illegal Content or Content which violates third party rights. The users themselves are responsible for the Content. The User shall be obligated to ensure, prior to using files and prior to storing them in his/her Account, that the utilisation and publication does not violate any rights held by third parties. The User shall in particular, but without limitation, be obligated to ensure that files, photographs, images, graphics, songs, videos, texts and other Content are free of copyrights, registered designs, patents, utility patents or other industrial property rights which may stand against the use of such Content, that no third-party trademarks, names or other rights to marks exist, which may stand against the use of such Content, and that the personal rights of third parties are not violated, for instance by the publication of photographs showing this person. Furthermore, it is prohibited to place files, irrespective of their type, with insulting, racist, discriminating, defamatory or other illegal Content, or files with immoral Content. In this respect, the User shall be responsible for obtaining any approvals by third parties which may be necessary, and, upon request by MyMusic, for providing proof thereof.

7.3 The User guarantees that the Content placed by him/her is free of third-party rights. Should a third party assert claims against MyMusic, based on patents, copyrights or other industrial property rights, the User shall, at his/her cost, take on the defence of MyMusic in any lawsuits filed against MyMusic, and shall indemnify MyMusic, upon first request, from any third-party claims. This shall only apply if MyMusic informs the User of any notifications by third parties asserting such claims and of the details of the claim as well as individual legal steps, and if MyMusic leaves the decisions regarding the legal defence or the conclusion of a settlement agreement to the User, provided that claims based on legal defects or other grounds have not already become time-barred at the time of the notification.

7.4 MyMusic shall have the right to delete files stored by the User on his/her Account, if, and in so far as, there is reason to assume that third-party rights may be infringed upon, in violation of the User’s above described obligations. This shall not affect the regulations in No. 9.

7.5 The User grants MyMusic an unlimited, irrevocable and transferable right of use for the Content stored on the Account. This granting of rights shall in particular comprise the right to publish, duplicate, disseminate, display and publicly reproduce data permanently, also for advertising purposes (including the right to conclude contracts, to stage and exhibit, the right to make the data publicly accessible, broadcasting rights, the right to reproduce the data through sound and image carriers and the right to play radio broadcasts and to make data publicly accessible. Transferability of these rights of use shall mean that MyMusic may grant third parties, in particular other users, co-operation partners and advertising partners, sub-licences to these rights, also for purposes of advertising by third parties. This granting of rights shall also comprise the period of time after the termination of the user contract, unless expressly agreed otherwise.

7.6 The User waives his/her right to being named as the author of his/her Content, also for the time after the termination of the user contract, unless expressly agreed otherwise.

7.7 Every User will have the possibility within the MyMusic Network to administer the profiles of other users in separate lists and/or to confirm such users as “friends”. For this purpose, every User has a list of friends which, depending on the settings by the user, may also be accessed by other participants of the MyMusic Network and into which he/she may incorporate other users. The system will generate a first friend for every user, named “KW”, who at the same time serves as a type of administrator. On the one hand, the User will be able to see from the example of the profile for KW how to complete and edit his/her own MyMusic Profile, and on the other hand, the User will also be able to contact KW via mail in order to obtain answers to technical questions or assistance.

8. Data back-up

8.1 The User himself/herself shall be responsible for the back-up and proper storage of the files. The User shall be obligated to store the Content loaded into his/her Account on his/her own external data carriers or other storage media, in compliance with state-of-the-art technology, and to carry out regular interim back-ups. The User is expressly made aware of the fact that a complete recovery of data through the MyMusic Account cannot be ensured.

8.2 Even in case of a termination of the user contract, MyMusic shall not be obligated to enable the User prior to deleting the Account to recover data which he/she had not stored on an external storage medium in compliance with the above obligations.

9. Rights held by MyMusic

Should the User violate the provisions laid down in these General Terms and Conditions or other agreements relating to utilisation, MyMusic shall in particular, but not limited to the following measures, be entitled – depending on the severity of the violations of rights – to:

remind the User to comply with the provisions of the user contract
admonish the User due to violations of rights and to request he/she comply with the provisions of the user contract
to freeze or delete individual files from the User’s Account
to temporarily freeze the User’s entire Account or
to permanently freeze the User’s entire Account and to delete the User’s entire Content.

These rights shall not affect the right to terminate this contract without prior notice due to an important reason.

These rights shall neither affect MyMusic’s right to assert claims for damages directly against the User due to violations of rights.

10. Notification on your cancellation right

f you are a consumer as defined in section 13 BGB (Bürgerliches Gesetzbuch – German Civil Code), i.e. neither are acting commercially nor within the framework of a self-employed profession, the following provisions apply:

Right of cancellation

You may cancel your declaration regarding this contract within two (2) weeks, without the necessity to provide reasons for this cancellation, in text form (e.g. letter, telefax, e-mail). The two-week period shall begin upon receipt of this notification in text form, however, not before the contract is concluded by Activation of the Applications, nor before we have fulfilled our information obligations pursuant to sections 312c subsection 2 in connection with section 1 subsections 1, 2 and 4 BGB-InfoV (Verordnung über Informations- und Nachweispflichten nach Bürgerlichem Recht – Decree on obligations of information and proof under civil law) as well as our obligations pursuant to section 312e subsection 1 sentence 1 BGB in connection with section 3 BGB-InfoV. A timely dispatch of the cancellation declaration or of the goods shall suffice to meet the deadline.

The cancellation declaration is to be directed to:

MY MUSIC AG
Niederwall 9
D-33602 Bielefeld
Fax: +49 – 7000 – 6968742
E-Mail: info@mymusic.ag

Consequences of a cancellation

In cases of an effective cancellation, each party shall return the received services and any capitalised use (e.g. interest) is to be reimbursed. If you are unable to return the received services, either completely or in part, or only in a deteriorated condition, you shall in so far be obligated to reimburse us for the loss in value. Any obligations for the reimbursement of payments must be fulfilled within 30 days. For you, this 30-day period shall begin upon the dispatch of your cancellation declaration; for us, it shall begin upon receipt of this declaration.

Special note

For the provisions of services, your cancellation right will expire prematurely if your contracting partner, with your expressed consent, has commenced the execution of the service prior to expiry of the cancellation period, or if you yourself requested such prior execution.
End of the notification on your cancellation right

11. Liability

11.1 Subject to the regulations contained in the following provisions, MyMusic shall only be liable for damages, irrespective of the legal basis of such claims, if they are caused by intentional or grossly negligent acts, by such acts committed by legal representatives or senior managers of MyMusic.

11.2 MyMusic shall only be liable for damages caused by MyMusic, its legal representatives, senior managers or other vicarious agents in a slightly negligent way, if an obligation has been violated, the compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligation). In such cases, liability shall be limited to such damages which must typically be anticipated within the framework of the respective contract.

11.3 Any liability for damages due to the violation of life, body or health, for the takeover of a guarantee or a procurement risk, and under the Produkthaftungsgesetz (German Product Liability Act) shall remain unaffected.

12. Data protection & Advertising

12.1 The data transferred by the User upon registration shall be stored by MyMusic for purposes of processing the order. For this purpose, MyMusic shall only store the data necessary for processing the user contract. When processing the data, MyMusic will naturally comply with the statutory provisions regarding the protection of your data.

12.2 The MyMusic Network is useless without the publication of the User’s data and Content. Only the publication of data enables communication and thus the achievement of the purpose of exchanging information within the Community. The User will, however, have the possibility to himself/herself determine the extent of the stored and used data, and to modify or restrict them at any time without having to provide reasons for this.

12.3 Statistical reports will be generated regarding the use of the Applications, in order to be able to provide the User with custom-tailored offers. The User will at all times have the right to terminate the user contract without prior notice if he/she no longer approves of such offers. The User’s data shall furthermore only be transferred to third parties with the User’s expressed consent. The User may at any time obtain information, free of charge, regarding the data stored for his/her person. Upon the User’s request, such data shall be corrected, frozen or deleted. Requests are to be directed to info@mymusic.ag.

12.4 For all other matters, the regulations of the Privacy Policy shall apply.

13. Final provisions

13.1 MyMusic reserves the right to modify these General Terms and Conditions, unless this is unreasonable for the User. Modifications may in particular become necessary due to technical advancements or changes or due to other reasons. Prior to modifying the General Terms and Conditions, MyMusic shall inform the User of the intended modifications. The User has the right to object to the validity of the new General Terms and Conditions for his/her user contract, within two weeks from the notification. If the User does not exercise this right, the modified General Terms and Conditions shall be deemed to have been accepted by the User, if, and in so far as, MyMusic has informed the User in the notification of his/her right to object, and of the significance of the deadline set for the objection.

13.2 Should individual provisions in these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace any invalid provision by such valid provision whose regulatory content comes as close as possible to the economic sense and purpose intended by the invalid provision. The same shall apply in case of omissions in the contract.