Terms and Conditions of Use ("Terms of Use")

About us

This website is owned and maintained by Kerchoonz Limited ("us"/"our", "we"), a company registered in Scotland. Registered number 342160. Our registered office is care of Henderson Loggie Sinclair Wood & Co, Gordon Chambers, 90 Mitchell Street, Glasgow, G1 3NQ. [For the purposes of these Terms of Use, Kerchoonz Limited shall include its group and associated companies.]

Last updated: 18th October 2008.

About this Website (www.kerchoonz.com)

www.kerchoonz.com is a next generation music download site, where members and visitors can access, download and preview digital entertainment.

You can either register and subscribe for an account as an 'Artist', 'DJ', 'Label', 'Writer/Publisher', 'Industry Pro' or register for a free account as a 'General User'. You do not need to register an account if you do not wish to upload songs or videos and instead simply wish to access the music and videos and other media on the website (i.e. you wish to be a 'Visitor'). If you do not register an account with us and instead access the website as a Visitor, then your continued use of this website will signify your agreement to be bound by these Terms of Use and Privacy Policy www.kerchoonz.com/privacy, which is incorporated into these Terms of Use by reference. Please note that Visitors may not access the full functionality of the website and may not download any of the music.

When you register an account with us and subscribe as an Artist, DJ, Label or Writer/Publisher you can upload your own songs and videos onto the website. As a General User you cannot upload any songs onto the website.

If you wish to take part in the 'Kwidget Network' then you will need to register a General, Artist, DJ, Label, Writer/Publisher or Industry Pro Account with us.

You will need to "accept" these Terms of Use to register either type of account with us.

If you do not agree with any part of these Terms of Use, you may not register an account and you should immediately cease using the website.

Please read these Terms of Use carefully as they will form a legally binding agreement between us and you, which will govern your use of the website, and also the rights which you will grant to us over in respect of any songs or videos you submit and the warranties (i.e. promises) you are making in respect of any content you upload..

If you do not agree with any part of these Terms of Use, you should immediately stop using or visiting this website, and navigate away from the website. We do not take ownership of any content submitted by you to the website - all ownership rights to your content shall remain with you at all times. When you accept these Terms of Use and upload content onto our website, you grant us a licence (i.e. permission) to use the content in accordance with clause 3 below.

Artist, DJ, Label, Writer/Publisher Account's (to upload songs)

To upload songs you must register and subscribe as an Artist, DJ, Label, or Writer/Publisher.  As one of these account holder types, you may also sign-up for an ad-revenue agreement which will allow you to share in the revenue generated by the advertising on the website every time your song is downloaded or streamed. There is an annual royalty collection admin fee of £12.50 inc VAT (Twelve pounds and Fifty pence Sterling) deductable only from royalties earned on the site for an Artist, DJ, Label, or Writer/Publisher account.

Content

All Content uploaded by you (in accordance with the type of account you register) must be your own original work (i.e. you must have created the Content and you have not copied anyone else's work in any way), and it must not infringe any third party's rights (e.g. privacy, copyright, performance right etc). Your Content must not contain any defamatory, obscene, threatening, harassing or illegal activity and nor must it invade any person's privacy. Your must ensure that you have obtained, and can evidence to us on demand, the consent of any person appearing or performing in your Content, and the right to use any other material which is in your Content e.g. music lyrics, performances etc. In the event that we, in our sole discretion, believe that your Content infringes the rights of a third party or in any way breaches these Terms of Use, then we reserve the right to immediately remove your Content and delete (or suspend) your account without notice to you. For the purposes of this agreement, 'Content' shall mean any material uploaded or provided by you to the website, including but not limited to music, videos, clips, pictures, comments.

1. Your Acceptance

By clicking the 'I Accept' button below and / or continuing to use this website you accept these Terms of Use and agree to be bound by and act in accordance with them. If you do not accept any part of these Terms of Use then you must not click 'I Accept' (and you will not be able to upload your Content or register an account) and / or you must cease using this website.

We may, from time to time, amend these Terms of Use and whilst we may attempt to notify you of such changes, it is your responsibility to ensure that you revisit these Terms of Use from time to time. By clicking 'I Accept', you also agree to be bound by any changes we may, in our sole discretion, make to these Terms of Use. We shall ensure that we put the date of the latest version of the Terms of Use at the top of this document. Your continued use of this website after we post an amended Terms of Use shall be deemed to signify your acceptance of the revised Terms of Use.

You confirm also that you are eighteen years of age over when accepting these terms of use. If you are over the age of thirteen, but under the age of eighteen, then you must obtain parental or guardian consent before providing any Content and your parent or guardian should register the account in their name and accept these Terms of Use on your behalf. If you are below the ages of thirteen, you should not use this website as there may be content on it which may not be suitable for you. We reserve the right to delete your account at any time if we believe you have given us false information regarding your age.

These Terms of Use, and any posted revisions, shall remain in full force and effect whilst you use the website or are a registered general user or artist. You may terminate your registered account with us at any time by [following the settings on the account settings page]. We may terminate your account with us at any time, with or without notice and for any reason given by us, and without liability towards us.

2. Account

To access the ability to upload Content onto the Website, you must register an account with us and accept these Terms of Use. Depending on the type of account you register (e.g. Artist, DJ, Label, Writer/Publisher,  Industry Pro Account or General User Account) you may not be allowed to upload all aspects of the Content to the website.  When registering an account, you hereby certify that all information provided by you is true and accurate. You must keep your account password private at all times, and you will be liable for any misuse of your account. You must inform us immediately if you are aware of any breach or misuse of your account, and you should not provide access to your account to any third party. You may only use your account for non-commercial purposes. We reserve the right to refuse to grant you a username in the event that, and in our sole opinion, it is vulgar, offensive or infringes any third party rights.

3. Content Licence to Us

In consideration of us granting you access to host and make available your Content on the Website, you hereby grant us an

irrevocable, non-exclusive (i.e. you are entitled to post your Content on other websites also), royalty free (i.e. we are not obligated to pay you to allow us to make your Content available on the website, save for any payment obligations we are obligated to make to artists under the Ad-Revenue Agreement) , sub-licensable and transferable (i.e. so we can transfer the licence to any of our 'sister' companies and allow our partners to offer the website services to you), worldwide licence to use, modify, stream, offer for download (including for free), reproduce and distribute the Content through the website in any media format and through any media channels.

You agree that we shall also be entitled to alter or edit your Content to enable us to fully exploit it on the website.

You hereby waive your so-called 'Moral Rights' in respect of any Content uploaded by you.

The above license shall continue for a reasonable period after you delete your account with us to enable us to remove your Content from our servers.

4. Conditions of Website Use and Usage Rules

The Website is provided by us on as 'as is' basis, and we make no representations as to the quality of the Website or the level of access to it.

You warrant (i.e. promise) and accept that:

1. you will abide by these Terms of Use (and any subsequent updated version) during your use of the Website;
2. you will not copy or reproduce any part of the Website;
3. you will not use or launch any automated system on the Website such as, but not limited to, spiders, bots, or screen scraping software;
4. you will not use the Website or any content available on it for any commercial or political reasons;
5. you agree not to disable any security feature used on the Website to protect the content or the actual Website structure;
6. you will be exposed to user Content from a variety of sources and that we are not responsible for the accuracy of clearing any third party rights or the validity of any statements in the Content. You therefore agree to hold us (and our parent and subsidiary companies, directors and employees) harmless from your use of the Website and any Content available on the Website;
7. You will only use the website for your own personal use (save for any rights granted to users who register an artist account and sign up to the ad-revenue agreement).
8. Any download or stream shall be subject to fair usage rules (which shall be subject to our sole discretion), and we reserve the right to limit the number of downloads you are able to perform;
9. You will not use any automated system to stream or download any of the Content;
10. You will not make any permanent copy of any song stream (or other Content), or copy, modify, adapt, edit, reproduce, publically perform, sell etc any song downloads (or other Content) obtained through this website - any song (or other Content) you access will be strictly for your own personal use only. We reserve the right to remove and delete any Content or your account in our sole discretion and for whatever reason as we may see fit, and without notice to you. We also reserve the right to amend or delete any comments submitted by you and made available on the Website as we in our sole discretion may see fit. In the event that we delete your account, you shall not be allowed to create a new account, unless specifically authorised by us to do so in writing.

5. Content

We are not under any obligation to make available your Content on the Website or to exploit them in any way. You accept that the Content and accuracy of any Content is solely your responsibility. You warrant (i.e. promise) to us that you have cleared the use of all material and performances in your Content, and that your Content do not in any way infringe third party rights or defame any person or include any illegal or obscene act (including of a pornographic nature). You warrant (i.e. promise) that you shall not submit any copyrighted materials (i.e. materials not created by you) to us.

All submitted Content must be in accordance with our [Content Guidance Policy].

We reserve the right to refuse to host any Content you may submit, and for any reason. We do not monitor any of the Content as it is uploaded onto the website by users, and therefore we take no responsibility over the conduct of users who submit Content onto the website. Each account holder is responsible for ensuring that all Content submitted by them conforms to all appropriate data protection, privacy and intellectual property laws.

You retain ownership of your Content, but are granting us the licence pursuant to paragraph 3 above.

It is your obligation to pay all royalties, fees or any other monies which may be owed to any third party by way of posting of the Content on the website.

Any Content you may access through the website shall be subject to the ownership of the rights owner. You may not attempt to access the Content from territories which the rights owner has expressly reserved. Some of the Content may not be available for download if the rights owner has expressly reserved this right, and you accept that we are under no obligation to provide both downloads and streams of the Content.

We do not guarantee the quality or truthfulness of any of the Content available on the Website.

You accept that your access to the Content is subject to fair and reasonable usage (as may be deemed by us from time to time).

6. Ad-Revenue Agreement

When you subscribe as an Artist, DJ, Label or Writer/Publisher you will soon be entitled to register your songs and/or videos to receive ad-funded income. Any income you may be entitled to receive will be subject to our Ad-Revenue Agreement.

Please note that the Ad-Revenue Agreement shall only become effective when Kerchoonz ends its 'Beta testing' stage. We shall notify you of this event by email and on the website.

7. Kwidget Network

When you register an account with us, you may be able to take part in the 'Kwidget Network'. As part of the Kwidget Network, we will supply you with html code for a banner advert or a Kerchoonz widget to add to your own personal (i.e. non-commercial) website or social networking page. Any bona fide third party person who uses your Kwidget (as supplied to you by us) who then subsequently signs up for an Artist,DJ, Label, Writer/Publisher or Industry Pro Account shall earn you a referral fee payment of five dollars (US$5) (n.b you will receive the referral fee less any taxes or administration payments). We will make payment to you solely by PayPal ninety (90) days after each quarter whilst you have a registered account with us, and you must therefore supply us with the details of an active PayPal account to take part in the Kwidget network. We reserve the right to 'deactivate' Kwidgets on notice to you. We reserve the right to cancel any payments to you in the event that we believe, in our sole discretion, that you have misused the Kwidget (by way of example only: commercially enticed users to signup).

8.Intellectual Property Rights

The intellectual property rights in the Website, including trade marks, source code and look and feel, are owned by or licensed to us (except for all uploaded Content which is owned by the user, and licensed to us). We fully assert our moral rights in the content and the Website which is owned by us. You are not entitled to copy or reproduce any part of the Website or the content made available on the Website for any reason whatsoever and you expressly agree not to sell, licencese, rent, modify, distribute, copy, reproduce, transmit, edit, create derivatives of, publically perform any of the material or Content available on this website without first obtaining the express permission of the rights holder. 'Kerchoonz' and 'Kerchoonz.com' are  registered trade marks (under-application): belonging to us and we reserve and assert all our rights in them.

9. Notice and Take Down Procedure

We respect the ownership of intellectual property rights and privacy rights, and we will on written notice reasonably remove access to infringing or potentially infringing Content on the website.

If we have reason to believe that you are infringing a third party's intellectual property rights (including privacy) in your Content, then we shall cease hosting your Content on the website and delete it from our servers, and at no liability to us. We shall also, at our sole discretion, delete your account with us.

In the event that you believe your own intellectual property or privacy rights are being infringed in any of the Content on the Website, then you should contact us immediately by email to infringement@kerchoonz.com detailing in good faith:

a. the reasons why you believe a submission infringes your rights in any way, or why the copyright owner has not authorised the submission for use on the website.

b. details of the relevant submission e.g. URL and/or screen shot, so we can accurately locate the submission

c. a statement that the information you have supplied is true and accurate, and that you are authorised to act on behalf of the owner of the exclusive right which is alleged to have been infringed.

d. Please also include your contact details (including email address, telephone number and postal address) so that we may contact you as may be appropriate. If you believe that your submission has been removed incorrectly, then you should notify us at infringement@kerchoonz.com. Whilst we are under no obligation to re-host your Submission, we may forward on your comments to the original complaining party.

10. Privacy policy

Our privacy policy www.kerchoonz.com/privacy is incorporated into these Terms of Use by reference hereto. Our privacy policy governs the way in which we may collect and use your personal information which we collect from your use of the website. If you do not agree with our privacy policy, you should not use this website or sign up for an account, and you should immediately navigate away from the website.

11. Service Suspension

Whilst we will use our reasonable endeavors to keep the website operational, certain software difficulties or routine maintenance and upgrades of the website may not make this possible. We therefore reserve the right tio suspend or remove any part of the website from time to time (either temporarily or permanently).

12. No refunds

Please note that any payment or part payment of the subscription fee (if applicable to your account) is non-refundable and we do not offer refunds in any circumstances. All transactions are final and therefore please ensure that you are familiar with the website prior to signing up for an 'artist account'. Any part of the subscription fee which you may have paid will be non-refundable in the event that any part (or whole) of the website is not available for any reason.

13. Indemnity (Compensation)

You agree to fully indemnify (i.e. compensate) us (including our parent and subsidiary companies, directors, employees) for any loss or damage we may suffer caused by your breach of these Terms of Use and any infringement of any third party right including without limitation any infringement of copyright, performing right, privacy right or resulting from any loss or harm suffered by a third party caused by one of your Content. This clause 8 shall survive the termination of this agreement between you and us.

14. Limitation of Liability

YOU SPECIFICALLY ACKNOWLEDGE THAT WE (INCLUDING OUR PARENT AND SUBSIDARY COMPANIES, DIRECTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT OR INDIRECT LOSS, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF ANY OF THE CONTENT OR CONTENT ON THE WEBSITE. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE DO NOT FILTER ANY OF THE UPLOADED CONTENT ON OUR WEBSITE, AND ARE THEREFORE NOT RESPONSIBLE FOR ANY INFRINGEMENT OF YOUR RIGHTS, ILLEGAL OR OFFENSIVE ACTIONS OR DEFAMATORY STATEMENT CONTAINED IN ANY OF THE CONTENT. YOU AGREE THAT YOUR USE OF THIS WEBSITE SHALL BE AT YOUR SOLE RISK AND WE (INCLUDING OUR PARENT AND HOLDING COMPANIES, DIRECTORS AND EMPLOYEES) HEREBY EXCLUDE TO THE FULLEST EXTENT ALLOWED BY LAW ANY LIABILITY TOWARDS US FOR ANY LOSS OR DAMAGE YOU MAY SUFFER ARISING FROM THE WEBSITE AND IN CONNECTION WITH YOUR USE OF IT. THIS CLAUSE 10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF THIRD PARTY WEBSITES WHICH MAY BE LINKED FROM THIS WEBSITE AND IT IS YOUR SOLE RESPONSIBILITY TO REVIEW THE PRIVACY POLICES AND TERMS OF USE FOR THOSE WEBSITES.

15. Warranty Disclaimer

Kerchoonz Ltd, and its affiliates, licensors, partners, members, suppliers, employees, consultants and agents ('the Kerchoonz Associates') disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or Content displayed on the website.

The 'Kerchoonz Associates' further expressly disclaims (1) that the website will be uninterrupted, error-free, timely, or secure, (2) that defects or errors will be corrected, (3) that the website or the server that makes it available are free of viruses or other harmful components, and (4) that the use of or the results of the use of the website or the Content made available as part of the website will be correct, accurate, timely, or otherwise reliable.

We expressly disclaim any and all responsibility and liability for the conduct of any account holder or visitor to the website, and expressly disclaim that the Content uploaded by account holders is correct or accurate.

THE KERCHOONZ WEBSITE, AND ALL MATERIALS, INFORMATION (INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, LINKS OR ANY INFORMATION OR MATERIALS OBTAINED OR ACCESSED THROUGH THE KERCHOONZ WEBSITE), PRODUCTS AND SERVICES INCLUDED THEREIN ARE PROVIDED 'AS IS,' 'WITH ALL FAULTS', 'AS AVAILABLE', WITH NO WARRANTIES WHATSOEVER. KERCHOONZ LTD EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

YOU AGREE THAT YOUR USE OF THE KERCHOONZ WEBSITE IS ENTIRELY AT YOUR OWN RISK AND IT IS SOLELY YOUR RESPONSIBILTY TO INSTALL AND USE VIRUS CHECKING SOFTWARE AT ALL TIMES.

16. Assignment

These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Us at anytime and without any restriction to Us.

17. Applicable Law and Jurisdiction

You accept that these Terms of Use shall be exclusively governed by English Law and that the courts of England shall be the exclusive courts of jurisdiction.

18. Construction

These Terms of Use are in addition to and supplement the Privacy Notice at www.kerchoonz.com/privacy and any other legal notices published by us from time to time on the website, and shall constitute the entire agreement between you and us for your use of the website.

If any provision of these Terms of Use are deemed invalid by a court of competent jurisdiction in England, then the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term.

19. Contact us

Kerchoonz Limited is responsible for the operation of this Website. You may contact us at Kerchoonz@kerchoonz.com. Alternatively you may write to Kerchoonz Limited c/o dand Carnegie, Spalding House, 90-92 Queen Street, Broughty Ferry, Dundee, DD5 1AJ, Scotland. Please mark any correspondence Kerchoonz.com, so that we may swiftly help you with any enquiry.

I agree to be bound by and to act in accordance with these Terms of Use.