FRESHTUNES TERMS AND CONDITIONS

These terms and conditions (“Terms”) apply to the FreshTunes service and platform provided to users (“you”, “your”, and “Users”) via a website and any associated digital applications and related properties which may be released by FreshTunes from time to time (the "Service"). The Service is operated by KEDOO DMCC trading as FreshTunes (“we”, “us”, “our” and “FreshTunes”).

Please read these Terms carefully and make sure that you understand them before registering as a User with us. If you do not understand or do not accept any part of these Terms, then please do not use the Service. By creating an account as a User, or uploading content, you agree to be bound by these Terms.

These Terms make a contract between you and us explaining how your content will be licensed to, and distributed by, us.

1. The Service

The Service enables you to make available and license your content to us to enable us to distribute your content via other online platforms.

Your content (“Content”) may comprise the following:

(a) “Recordings” – master audio and/or audio-visual recordings embodying performances of musical compositions;

(b) “Metadata” – relating to Recordings: tags, titles, and descriptions; names of all music publishers and co-music publishers and percentage of ownership of all music publishers and co-music publishers; and ISRC and/or ISWC codes; and

(c) “Artwork” – cover art and any associated materials related to Recordings.

You can upload your Content to the Service using the functionality and tools we make available to you. You agree to submit and upload all Content at your sole expense and in the format required by us and our Distribution Network (as defined at section 2 below) partners.

When you upload Recordings to the Service, you must also provide the corresponding Metadata and Artwork.

2. Your Content

You will continue to own all intellectual property rights in your Content.

You hereby grant to us a non-exclusive (subject to the remainder of this paragraph 2), worldwide, royalty-free, transferrable and sub-licensable right (but not the obligation) and licence over: (i) your Content (and any part of it); (ii) your name, image, likeness and biography and the names, images, likenesses and biographies of the contributors and artists whose performances are embodied in the Recordings (the “Performers”); and (iii) any intellectual property rights in any of the foregoing, to enable us to copy, distribute, modify, edit, display, use, create derivative works of, communicate to the public, transmit, make available and otherwise exploit them for the purposes of: (a) making the Content available for, and facilitating, licensing to the Distribution Network (and to end users of the Distribution Network); (b) displaying the Content on or via the Service and webpages, apps and other properties owned or operated by the Distribution Network; (c) marketing or promoting the Content, the Service and the Distribution Network; (d) providing VAS (as defined at section 5 below) to you; (e) our own internal and technical arrangements and requirements; and (f) the general operation of the Service (as it may be updated from time to time).

Without limiting the foregoing, you further hereby grant to us the royalty-free, worldwide, transferrable, sub-licensable right (but not the obligation) and licence to:

(a) Reproduce, communicate to the public, distribute, sell, disseminate, transmit (including by way of downloading and streaming), synchronise with moving or still images, market, promote, advertise, alter and otherwise use and exploit the Recordings (and any part of them, including clips of Recordings) by any and all means and media (whether now known or existing in the future) through, on or via the Exclusive Distribution Network (on an exclusive basis) and the Distribution Network (save for the Exclusive Distribution Network, on a non-exclusive basis) and collect all income resulting, arising or deriving therefrom (including any collection society payments, other than in respect of your share which is paid directly by a collecting society to you); and

(b) Use your name, image, likeness and biography, and the names, images, likenesses and biographies of Performers, together with your Metadata and Artwork and other information in connection with the exploitation of the Recordings and promotion of them.

Please note that, without limiting the foregoing, you are granting us the exclusive right to license your Recordings via the Exclusive Distribution Network. This means that you may not license or authorise anyone else to license such Recordings to the Exclusive Distribution Network partners directly. If the Recordings you upload to the Service have already been uploaded to an Exclusive Distribution Network partner service, then you must remove such content immediately.

For the purposes of these Terms:

· “Distribution Network” means our existing digital distribution network of digital music service providers and online retailers as may be extended and varied by us from time to time (including direct to consumer platforms and user generated content platforms where we automatically monetise user generated content); and

· “Exclusive Distribution Network” means YouTube (including all versions of it and in all forms) and any other provider or retailer of the Distribution Network which we designate as falling within the Exclusive Distribution Network from time to time.

We may change, add to or subtract from the Distribution Network (and the Exclusive Distribution Network) from time to time without notifying you.

You agree that we may make available (and permit others to make available) the Content via any means (including, without limitation, by way of download (permanent and temporary, and via the cloud), stream, embedded media player or hyperlink for later access). You further agree that we may make your Content available under FreshTune’s branding and the branding of our Distribution Network providers/retailers.

We reserve the right to remove any Content from the Service and the Distribution Network at any time in our sole discretion and without liability.

You must ensure that you have all necessary rights to upload and license the Content. You must either own or have properly licensed the Content before uploading it to the Service. Your Content is your responsibility, and we accept no responsibility or liability regarding it.

We may from time to time make available to you functionality enabling you to request that: (i) your Content is not sold or made available for sale in particular territories; and (ii) your Content is not (or is no longer) exploited through a specific provider/ retailer within the Distribution Network. Following our receipt of any such request and subject to: (a) any terms, policies and restrictions imposed by the relevant Distribution Network provider/retailer (including, without limitation, any agreement we have in place with such provider/retailer); and (b) any rights already granted to an end-user, we will use our reasonable commercial endeavours to effect your request. Without limiting the foregoing, any request for take-downs shall be undertaken in accordance with section 11 below.

You shall ensure that we have the right to use the Performers’ name, image, likeness or any biographical material in connection with the publicity, advertising and exploitation of the Recordings.

You shall do and execute any act or document reasonably requested by us to give full effect to the rights granted under these Terms.

3. Your account

To become a User on our Service, including making available Content via the Service, you will need to set up an account with us. You need to be 18 or over to create an account. You are responsible for your account, including making sure that your details are correct and kept up-to-date and ensuring that your password is secure. You are also responsible for all activity that takes place on your account. You must not share your account with any other person.

If you think your account is being used by anyone else, please contact us at support@freshtunes.com immediately. If we believe your account has been compromised, we may suspend your account and we will contact you to try and resolve the problem.

We reserve the right to refuse an application to become a User in our sole discretion.

You must provide us with true and accurate information when registering and you must not impersonate any person or use a name you are not legally authorised to use. You authorise us to use any information you provide to us to verify your identity or to obtain credit reports about you from time to time.

You may delete your account at any time using the functionality of the Service. Following the deletion of your account, we will remit to you any remaining funds (which were received from your share of Net Sales Revenue) credited to your account to the extent divisible by 25. Any remaining sums in your account will be forfeited and retained by us. Notwithstanding the foregoing, if your account is deleted by us arising from your breach of these Terms, then all sums in your account will be forfeited and retained by us.

4. Revenue and payment terms

You acknowledge and agree that we and our Distribution Network partners shall determine in our sole discretion the manner in which to exploit (or not exploit) the Content and the monetisation model used to do so (which, for example, includes the right to set the purchase price (if any) for the Content).

Subject to, and conditional upon, your strict compliance with these Terms, you shall be entitled to 100% of Net Sales Revenues derived from exploitations of Recordings via the Service, except in the following circumstances:

(a) to the extent that we elect to make your Recordings (or any of them) available (or permit others to make such Recordings available) by means of a compilation album or playlist featuring your Recordings (or any of them) together with select other recordings of other artists, we shall be entitled to retain 40% of the Net Sales Revenue derived from exploitations of the Recordings in connection with such compilation album or playlist. The remaining 60% of Net Sales Revenue shall be paid to you in accordance with this section 4; and

(b) to the extent that we elect to exploit your Recordings (or any of them) by means of the FreshTunes YouTube Properties (or any of them), we shall be entitled to retain 100% of the Net Sales Revenue and other income deriving therefrom.

FreshTunes YouTube Properties” means the channels, playlists and other properties associated with the FreshTunes YouTube account https://www.youtube.com/user/fresh (and/or any other YouTube account, channel or YouTube webpage that we may control or operate from time to time).

Net Sales Revenues” means, for each calendar quarter, recognised revenues actually received by FreshTunes directly and identifiably from exploitation of your Recordings via the Distribution Network, less applicable taxes (such as VAT), returns, refunds, charge backs, bank transfer fees, third party commissions and fees (including fees and commissions of Distribution Network partners) and FreshTunes’ operating and hosting costs.

Payment terms

Subject always to our receipt of the applicable sales revenues and sales revenues from our partners, your share of Net Sales Revenue will be credited to your Account Balance (as defined at section 5 below). We will use our reasonable commercial endeavours to make any payments due to you within sixty (60) days following the date on which we receive your request for withdrawal of such sums from your Account Balance (such requests may be made using the tools and features we make available to you as part of the Service), provided that: (i) you may only request payment once you have earned revenue (deriving from your share Net Sales Revenues) of not less than US$25.00; and (ii) you may only request payment in amounts divisible by 25 (e.g. US$25, US$50, US$75 etc.). If we pay you by PayPal Here then you will need to maintain a valid PayPal Here account. Alternatively, we may from time to time elect to pay you by bank transfer or other means. We will only be obliged to make payment to you following your request, once your account balance exceeds US$25.00. If, following your request for payment: (i) your balance is less than US$25.00; or (ii) part of the funds are not divisible by 25; we will hold such funds until you request payment at a later date, once your balance exceeds such amount and/or is divisible by 25. We will not pay any interest to you on any sums we hold in accordance with this section (which interest (if any) we may retain in full for our own account) and any bank charges which may be due in connection with such transfer shall be borne by you alone.

We may deduct any amounts you owe to us from the Net Sales Revenue otherwise payable to you.

You are responsible for the payment of all taxes arising from your use of the Service and sale of Content.

You need to use our Service at least once within any 3-month period by logging in to your account. If you don’t we may suspend your access to the Service and remove your Content (including from the Distribution Network) at our discretion. If, within any 2-year period, you have: (a) not logged into your account at least once during such time; and (b) not requested payment of any amounts held by us on your behalf in accordance with this section, then any credit on your account at such time shall be forfeited and may be retained by us in our discretion.

We may, from time to time, provide you with, or make available, statistics and reports concerning the exploitation of your Recordings based on information received from our Distribution Network partners. You acknowledge and accept that such statistics and reports are estimates only and we provide no warranty or other assurance that such statistics or reports are full, accurate or complete. Such statistics and reports may not be used by you to dispute the calculation of Net Sales Revenue.

Any objection relating to any accounting statement or any claim arising therefrom must be made (and any claim commenced) no later than one (1) year after the date the statement is rendered, and you hereby waive any longer statute of limitations that may be permitted by law.

The consideration payable under these Terms includes a payment in respect of the rental and lending rights which represents adequate and equitable compensation for the rental and lending rights and save for the payments specifically referred to in these Terms, you and the Performer shall not be entitled to any further sums whatsoever from us by reason of our exploitation of the Recordings.

5. Value added services

We may offer certain value added services (the “VAS”) to you via the Service from time to time.

Our acceptance of your order for VAS will take place when we email you to accept it. Once we have accepted your order for VAS then, to the extent permitted by applicable law, you may no longer cancel such order.

If you wish to make a change to the VAS you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the VAS, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change.

If the VAS is a one-off service then we will begin the provision of the VAS on the date we accept your order or on the date agreed with you during the order process. The estimated completion date for the services is as told to you during the order process.

If the VAS is an on-going service, then we will supply the VAS to you until either the services are completed, you end the contract in accordance with the termination procedures agreed with you at the time of your order, or we end the contract by written notice to you.

We may need certain information from you so that we can supply the VAS to you. If you do not give us this information, or if you give us incomplete or incorrect information, we may either end the contract for the supply of the VAS or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the VAS late or not supplying any part of the VAS if this is caused by you not giving us the information we need.

As between you and FreshTunes, all proprietary and intellectual property rights in and to the products and output of VAS (“VAS Deliverables”) shall belong exclusively to FreshTunes and you hereby assign to FreshTunes (by way of present assignment of present or future copyright) any and all rights you have in and to the VAS Deliverables (if any) with full title guarantee. Subject to your compliance with these Terms and your payment of the fees for the VAS in full, we grant to you a limited, non-exclusive, non-transferrable licence to use the VAS Deliverables solely for the purpose for which it was developed or created by us, or as otherwise agreed between us in writing.

The price of the VAS (which includes VAT) will be the price indicated on the order pages when you placed your order, unless such price was displayed in error.

Before being able to order any VAS, you will first be required to make a payment via our payment processor partners to pre-fund your account balance for use on the Service (“Account Balance”). You can use the funds in your Account Balance for your VAS orders and we will be entitled to deduct from your Account Balance any amounts owing to us. Once funds from your Account Balance have been spent via the Service or allocated to a VAS, such funds become non-refundable.

Please note that, unless otherwise agreed with us in advance (and at our discretion), all amounts spent by you for VAS must be pre-funded in advance (by crediting your Account Balance).

6. FreshTunes’ intellectual property rights

The legal rights (including the intellectual property rights) in our website, app, and Service including any content on them (excluding your Content, but including the VAS Deliverables) and the compilation of this content is owned by us, or licensed to us by third parties. Our website, app, and Service, including the compilation of the content, are protected by international copyright laws and database rights.

Subject to your compliance with these Terms, FreshTunes grants you a limited, revocable, non-transferrable, non-exclusive licence, for the term of the agreement, to use the Service and the related software, solely to the extent necessary for using the Service in compliance with these Terms. You agree not to infringe any intellectual property rights of FreshTunes or third parties. Use of the Service is allowed only for the agreed and intended purpose in compliance with the Terms and guidelines issued by FreshTunes.

You may not, without our prior written consent, copy, convert, make derivative works of, alter or modify the Service, or its supporting documentation or software or any part thereof, or disclose or deliver it to a third party, except where required by mandatory law.

7. Use of the Service

You shall have the right to use the Service as specified under these Terms and any of our guidelines (as we may issue from time to time) in compliance with law.

You use the Service and upload Content at your own risk.

We shall have the right, without prior notification, to interrupt, deactivate, suspend, disable, block or prevent the use of the Service, the Content or any part thereof at any time in our sole discretion. You shall be solely liable for any costs, fees, charges, claims, damages, compensation, indemnification or disputes related to or arising out of your misuse of the Service or Content.

We have the right to deactivate the Service or take down particular Content or restrict or prevent the use of them in case a competent authority demands disconnection or deactivation or any other such measure.

You agree that you shall not, nor permit any third party to:

(a) use the Service other than as expressly permitted by these Terms and as permitted by the normal functionality of the Service;

(b) use the Service in any way that is unlawful; or

(c) circumvent, disable or otherwise interfere with any security related features of the Service.

If we, in our sole discretion, consider that you have breached these Terms, then without limiting any other right or remedy we may be entitled to, we may take any action we consider is necessary to protect the Service and its Users. We may: (a) withdraw your right to use the Service; (b) remove your Content (including from any Distribution Network); (c) take legal proceedings against you; and/or (d) disclose any information to law enforcement authorities we think is necessary or as required by law. Such actions are not limited and we may take any other action we reasonably deem appropriate.

The quality of Service may be affected by a number of factors including, for example, the devices used by you, network connection and internal network, as well as any interference or maintenance work.

If a disruption or disturbance occurs on the Service or a part of it or if the Service or a part of it is temporarily out of use or inoperative due to repair or maintenance work, updates or reasons beyond the control of FreshTunes (force majeure), you accept that such interruptions, disturbances or disruptions do not constitute a defect or delay of or in the Service, and, to the extent permitted by law, we shall not be liable for any consequences of or damages resulting from such interruptions, disturbances or disruptions. We or a third party shall seek to repair the problems or failures as soon as possible and to restore the Service to use as soon as possible under the circumstances. We have the right to update the software included in the Service from time to time.

9. Clearances, warranties and indemnity

You agree to waive any moral or similar rights in any jurisdiction that you may have in and to any of the Content, even if the Content is modified, altered or changed in a way which is not agreeable to you.

You warrant, represent and undertake to us that:

(a) the Content is your own original work and you own the entire right, title and interest in and to the Content (including the musical compositions embodied in the Recordings) and/or you have all necessary licences, rights, consents and permissions to use and exploit, and to authorise us to use and exploit the Content (including without limitation, all necessary rights in respect of the underlying musical compositions embodied in the Recordings) in the manner contemplated by these Terms;

(b) no further payments, monies, fees or royalties are or shall be due to any third parties relating to, arising out of, or in connection with the exploitation of the Content;

(c) any Content you upload, share or submit using the Service complies with the Content standards set out below and all applicable laws;

(d) your Metadata and other information you provide concerning the Recordings are accurate, current and complete and are not misleading or deceptive;

(e) your Content shall be suitable and appropriate in all respects;

(f) your Content (in whole or in part) does not defame third parties or infringe upon the copyright or other intellectual property rights, or rights of privacy of any third parties; and

(g) you will not collect Users' data or information, or otherwise access the Service, using automated means without our permission.

You shall be solely responsible for securing and paying for all mechanical, public performance and any other licences (as applicable) required from musical composition copyright owners or their agents (including, if applicable, publishers and collection societies) in connection with the exploitation of the rights granted under these Terms, as well as royalties due to Performers, producers and other contributors to the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any statutory schemes.

You hereby indemnify, defend and hold harmless FreshTunes and its group companies, employees, partners in the Distribution Network, affiliates and agents from and against all damages, claims, suits, actions, costs (including legal costs) and expenses whatsoever, arising out of:

(a) the licensing, sale and provision of Content via the Service and Distribution Network;

(b) any actual or alleged infringement by you of third party intellectual property rights in connection with the Content or Service;

(c) your unauthorised use of VAS Deliverables;

(d) your breach of the warranties under these Terms; or

(e) your material breach of any obligation under these Terms.

10. Your conduct

You must not:

(a) upload, share or submit Content that is or may be interpreted as obscene, indecent, pornographic, sexually explicit, libellous, maliciously false, inaccurate, misleading, depicting violence (in a explicit, graphic or gratuitous manner) offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or cause annoyance, inconvenience or needless anxiety to any person or be in breach of racial, religious hatred or discrimination legislation;

(b) use the website, app or Service for any illegal or unlawful purpose. You must comply with these Terms at all times and with all applicable laws and regulations;

(c) upload, share or submit any Content that infringes any proprietary rights of any third party including any patent, copyright, moral right, database right, trade mark right, design right, trade secret rights in passing off, rights of privacy, publicity, confidence, or under data protection legislation or other intellectual property law;

(d) upload, share or submit any Content on the Exclusive Distribution Network unless it is through FreshTunes;

(e) falsely affiliate yourself or your Content with any third party (for example, you must not claim that you are signed to a music label if you are not);

(f) do or omit to do anything which would bring FreshTunes (or any of its group companies), the Service, or other Users into disrepute or in any way damage their reputation;

(g) conduct forward promotions, chain letters, surveys, contests, or pyramid selling schemes;

(h) upload, share or submit Content containing any spy ware, adware, viruses, corrupt files, worm programmes or other malicious code designed to interrupt, damage or limit the functionality of or disrupt any software, hardware, telecommunications, networks, servers or other equipment, Trojan horse or any other material designed to damage, interfere with, wrongly intercept or expropriate any data or personal information;

(i) modify, adapt, translate, reverse engineer, hack or use any other means to retrieve or index any part of the website, app or Service unless you have prior written consent from FreshTunes;

(j) incorporate any advertising, or conduct any other paid sponsorship or promotional activities of any kind, in or in connection with the Content, save as expressly authorised by these Terms;

(k) interfere with another User’s use and enjoyment of the website, app and Service or use the website, app or Service in any other manner that could damage, disable, over burden or impair the website, app or Service; or

(l) cause or allow the artificial inflation of a Content’s play-count whether by purchasing views, click-fraud or otherwise and whether as a result of your actions or the actions of your agents or other representatives. If you commit a breach of this provision, we may, without prejudice to any of our accrued rights, delete your account immediately.

11. Takedown

We will take down certain Content from the Service and request that our Distribution Network partners take down the Content from their own properties, as soon as reasonably practicable after a written request from you to do so or following the deletion of your account, provided that such take-down shall not affect any end-users who have already licensed, downloaded or purchased the Content, nor our or our Distribution Network partners’ ability and right to continue making available such Content to end-users who have already licensed, downloaded or purchased the Content (e.g. by making such Content available in the cloud for end-users to redownload).

We have the right, but not the obligation, at our sole discretion and without notice, to remove any Content (including from any Distribution Network partner) that you upload, share or submit. Notwithstanding the foregoing, we do not have any obligation to check the accuracy or truthfulness of the Content, nor to review or monitor such Content, or your use of the website, app or Service.

You acknowledge and agree that, if we remove your Content from the Service or the Distribution Network due to an alleged copyright infringement, or due to our belief that you may not have all the rights in and to the Content, then we may suspend your access to your account funds until such dispute is resolved to our satisfaction.

12. Copyright infringement

We accept no obligation to monitor, review, filter, moderate or remove any Content or any other content from the Service. Nevertheless, we reserve the right to take any such actions in our discretion.

If you believe that your work, or the work of someone you are authorised to represent, has been uploaded to the Service, without your authorisation, or in any other way that constitutes copyright infringement, you should notify us of your copyright infringement claim in accordance with the procedure below.

Please provide a notice of copyright infringement containing the following information:

1. a statement that you have identified works which infringe your copyright, or the copyright of a third party on whose behalf you are entitled to act;

2. identification of the location of such works in sufficient detail so that we can verify their existence;

3. a description of the copyright works that you claim have been infringed;

4. your full name, address and telephone number and a valid email address on which you can be contacted;

5. a statement that you believe in good faith that the disputed use of the material is not authorised by the copyright owner, its agent, or the law; and

6. a statement that the information in your notice is accurate and that you are the owner of, or otherwise authorised to act on behalf of the owner of, the copyright work that is allegedly infringed.

Please send the notice containing the above information by email or post to:

Email: support@freshtunes.com

Address:

Unit No: 3O-01-2621, Jewellery & Gemplex 3 , Plot No: DMCC-PH2-J&GPlexS , Jewellery & Gemplex

Dubai , United Arab Emirates.

DMCA notices

If you also wish your notice to be considered as a notice in accordance with the Digital Millennium Copyright Act (“DMCA”) you should comply with the additional steps below:

  1. Please also include the following in your notice:
  • a statement made under penalty of perjury that the information you have provided is accurate and that you as the notifying party are authorised to make the complaint on behalf of the copyright owner;
  • your physical or electronic signature (a scanned copy of your signature is acceptable).
  1. Please send the notice containing the above information to our designated agent to receive notification of claimed copyright infringement (“Designated Agent”) Andrew Rudetskih by email (support@freshtunes.com), or postal mail (to the address above).
  2. Please only inform us of genuine claims of copyright infringement. You may be held liable for damages (including costs and attorneys' fees) if you make an unsubstantiated claim.
  3. In accordance with the DMCA, once a bona fide infringement notification is received by the Designated Agent, it is our policy:
  • to remove or disable access to the infringing material;
  • to notify the alleged infringing content provider that access to the material has been disabled or the material has been removed; and
  • that repeat offenders will have the infringing material removed from the system and their access to Clip will be terminated.

Upon receipt of the notice containing the required information, we may:

i. Remove or disable access to the material that is alleged to be infringing;

ii. Forward the written notification to the User who is providing the allegedly infringing material, along with your contact information;

iii. Take reasonable steps to promptly notify the User that we have removed or disabled access to the allegedly infringing material and that the User may respond with a counter-notice (in accordance with the procedure below); and

iv. Terminate the User’s account in the case of repeat infringement if no counter-notice is filed and/or if a lawsuit is filed.

Counter-notices

If the applicable User believes that the material that was removed or to which access was disabled is either not infringing, or he/she believes that he/she has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the User must send a counter-notice:

  1. The counter notice should contain the following information for the Designated Agent:
  • the User’s physical or electronic signature;
  • identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled;
  • a statement that the User has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
  • the User’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the User’s address is located, or if the User’s address is located outside the United States, for any judicial district in which allegedly infringing material is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
  1. If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling.
  2. Unless the copyright owner files an action seeking a court order against the applicable User the removed material may be replaced or access to it restored at our discretion.

Notwithstanding our position that we are not obliged to monitor the Content uploaded to the Service (as referred to above), it is our policy to: (i) block access to or remove material that we believe in good faith to be copyright works that have been illegally copied and distributed by any of our advertisers, affiliates or Users; and (ii) terminate repeat offenders’ use of the Service.

We have no control over and do not warrant in any way that the Content or other information and materials provided by Users or third parties are accurate, complete, legal, non-infringing, reliable, current or error-free. To the fullest extent permitted by law, we disclaim all warranties, representations, and terms and conditions that may relate in any way to any Content uploaded on or via the Service.

13. Liability

You agree for the purposes of this section 13, that you are entering into these Terms in the course of a business (i.e. by selling and licensing your Content via the Service), and not as a consumer.

We shall not be held responsible for any delay or failure to comply with our obligations under these Terms if the delay or failure arises from any cause which is beyond our reasonable control.

Other content hosted on the Service may be created and uploaded by other Users and we are not responsible for and do not endorse such material. We will not be held responsible or liable for the content, accuracy, timing or reliability of any such material.

You acknowledge that the Service and any VAS ordered may be unavailable from time to time. You further agree that:

i. the Service, any VAS, any VAS Deliverable and all associated websites, apps and software are all provided on an “as is” and “as available” basis;

ii. to the fullest extent possible under applicable law, FreshTunes gives no representation, term or warranty, express or implied, as to the quality, fitness for a specific purpose, or the availability of the Service, VAS or VAS Deliverables (or any part of them);

iii. FreshTunes’ liability under or in connection with these Terms shall be limited to the total sums paid to you by FreshTunes during the preceding 12-month period in aggregate for all events giving rise to liability during the term of these Terms; and

iv. to the extent possible under applicable law, all warranties, terms and conditions that are not expressly set out in these Terms are excluded.

To the extent permitted by applicable law, we shall not be liable to you or any third party for any losses of any kind arising under or in relation to your use of or inability to use the Service, VAS or VAS Deliverables (or any part of them), including but not limited to: (i) any loss of profits, business, sales, goodwill or revenue; (ii) any loss or corruption of data; (iii) any consequential, incidental, punitive or special loss or damage whatsoever, whether or not such loss or damage arises directly or indirectly and whether or not of the type described in (i) or (ii); regardless of whether any action or claim is based on contract or in tort (including negligence) or any other legal theory of liability, and even if either party was aware of the possibility of such loss or damage.

We shall not be deemed in breach of these Terms unless you have given us notice of the breach and we have failed to cure such breach within thirty (30) days after receipt of such notice. In no event shall any breach entitle you to rescind the rights granted under these Terms.

Where we provide links from the Service to other sites, this will be for information purposes only. We have no control over, or responsibility for, the content on those sites.

Consumers

Although you have agreed that you are entering these Terms as a trader in the course of a business, to the extent that you are determined by applicable law to be a consumer, then some or all of the above limitations may not apply, and the following limitations and exclusions shall apply in their place to the extent necessary for compliance with such laws.

With respect to Users who are determined to be consumers only, if FreshTunes fails to comply with these Terms, FreshTunes is responsible for loss or damage suffered by you that is a foreseeable result of our breach of these Terms or our negligence. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time these Terms are entered into.

FreshTunes shall have no liability to Users which are determined to be consumers for any loss of profit, loss of business, business interruption, or loss of business opportunity. FreshTunes also expressly excludes any liability for any loss or damage which may be incurred by Users as a result of their breach of these Terms.

FreshTunes shall not be held responsible for any delay or failure to comply with its obligations under these Terms if the delay or failure arises from any cause which is beyond its reasonable control.

Consumers are entitled to various statutory warranties (including, for example, that any service is carried out with reasonable skill and care, and any digital content provided is of satisfactory quality). Nothing in these Terms shall have the effect of excluding or limiting those implied statutory warranties which may not be excluded or limited under applicable law.

Notwithstanding anything in these Terms to the contrary, we do not in any way exclude or limit our liability for:

(a) death or personal injury caused by our negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which may not be limited or excluded under applicable law.

14. Confidentiality

Confidential Information” means information in whatever form relating to the business, affairs and finances of FreshTunes or any of its group companies for the time being confidential to FreshTunes, its group companies and its Distribution Network, and including (but not limited to) information that you create, develop, receive or obtain in connection with these Terms, whether or not marked confidential.

You shall not use or disclose to any third party any Confidential Information. This restriction does not apply to:

(a) any use or disclosure authorised by FreshTunes or required by law; or

(b) any information which is already in, or comes into, the public domain otherwise than through your unauthorised disclosure.

15. Transfer or assignment

You shall not have the right to transfer or assign these Terms to a third party without the prior written consent of FreshTunes. FreshTunes has the right to transfer or assign its receivables or these Terms, in full or in part, within its group of companies or to a third party.

These terms and conditions are between FreshTunes and you. No other person shall have any rights to enforce any of its terms.

16. Amendments

We have the right to amend these Terms and the features of the Service or a VAS by notifying you of the amendment (which we may do by updating these Terms on our website). The amendments and the new terms and conditions shall be applicable as of the entry into effect thereof, and will be accessible via the FreshTunes website.

We constantly develop our Service and VAS. This may include, for example, trying out and testing of new features. We have the right to deliver and operate the Service and VAS as we deem best and to change the features and content of the Service or VAS, or remove parts of them. We have the right to automatically update the Service, VAS, website and software and change the settings. We may notify you of such changes on a case by case basis as we in our sole discretion deem appropriate. The changes will take effect immediately as they are made.

17. Discontinuation of the Service

We have the right to discontinue the Service or any individual service (including any VAS) or feature or part of it at any given time without specifying any reason.

18. Relationship between the parties

Nothing in these Terms shall render you an employee, worker, agent or partner of FreshTunes and you shall not hold yourself out as such. You shall be fully responsible for and shall indemnify FreshTunes and its group companies for and in respect of any income tax, National Insurance and social security contributions and any other liability or claim made in connection with either the performance of your obligations under these Terms or any payment or benefit received by you in respect of the sale of your Content on the Service, where such recovery is not prohibited by law.

19. No waiver

No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy; nor shall it preclude or restrict the further exercise of that or any other right or remedy.

20. Survival

If any court or competent authority finds any provision of these Terms invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of these Terms shall not be affected.

21. Third parties

No person who is not party to these Terms may enforce any term of them and the Contracts (Rights of Third Parties) Act 1999 shall not apply.

22. Applicable law

These Terms are governed in all respects and in their entirety by the laws of England and Wales, excluding its choice of law and conflict of law rules. The parties submit to the non-exclusive jurisdiction of the English courts.

23. Processing of personal data

By providing FreshTunes any personal information in context of the Service, by registering to the Service or by using the Service you expressly accept our Privacy Policy and consent to the collection, use and disclosure of your personal information and data in accordance with the Privacy Policy as it may be amended from time to time.

We may forward your name, address and other contact information about you to any third party who, in our view, reasonably claims that you do not or may not have all necessary rights in and to the Content you upload, submit or share on the Service. We may also, at our sole discretion, provide to you aggregated and anonymised data concerning the performance of your Content (the accuracy and completeness of which we do not guarantee).

The Service automatically includes a notification service by which you shall be regularly informed about products and services, customer benefits and offers of FreshTunes, our partners and other selected parties. You may also receive messages electronically, for example by e-mail. For further details, including on how to unsubscribe from such notifications, please see our Privacy Policy.

Contact Details

The Service is offered by KEDOO DMCC trading as FreshTunes. FreshTunes is incorporated under the laws of Dubai, UAE. FreshTunes’ registered address is:

Unit No: 3O-01-2621, Jewellery & Gemplex 3 , Plot No: DMCC-PH2-J&GPlexS , Jewellery & Gemplex

Dubai , United Arab Emirates.