http://blog.priceonomics.com/post/47719281228/the-economics-of-girl-talk
http://freesound.org/browse/
http://www.theatlantic.com/entertainment/archive/2011/04/how-copyright-law-hurts-music-from-chuck-d-to-girl-talk/236975/
http://www.nolo.com/legal-encyclopedia/how-obtain-sample-clearance-29725.html
"Average White Band and the Gap Band pro-actively seek to promote their music for sampling. Tommy Boy Records also makes it easy to acquire clearances."
"When Sample Clearance Is Required
In general, sample clearance is required only if you plan to make copies of your music and distribute the copies to the public.
Sample clearance is generally not required if:
- You are just using the sampled music at home.
- You are using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
- You plan to distribute copies to the public but meet one of the following: (1) an average listener would not notice the similarities between your end product and the sample, or (2) your use of the sample falls under the "fair use" doctrine. For more information on these, see "Defending a Lack of Sample Clearance," below."
—
fair use
"In America, the 1976 Copyright Act defines the circumstances under which exceptions to copyright law are permissible as “fair use.” Section 107 lists potential exceptions of using copyrighted material as “criticism, comment, news reporting, teaching, scholarship, and research.” This doesn’t include music producers working with samples, but the criteria defining fair use, which the act admits is not easily defined, are as follows:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work"
http://blog.priceonomics.com/post/47719281228/the-economics-of-girl-talk
"If you use samples in your commercially released music, you should get legal permission. The process of getting permission from the owners of the sampled music is referred to as "sample clearance." Failure to get the proper permission could lead to serious consequences: lawsuits or the inability to distribute your music to the public.
When Sample Clearance Is Required
In general, sample clearance is required only if you plan to make copies of your music and distribute the copies to the public.
Sample clearance is generally not required if:
- You are just using the sampled music at home.
- You are using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
- You plan to distribute copies to the public but meet one of the following: (1) an average listener would not notice the similarities between your end product and the sample, or (2) your use of the sample falls under the "fair use" doctrine. For more information on these, see "Defending a Lack of Sample Clearance," below.
Operating Without Sample Clearance
Many artists releasing their own recordings can't obtain clearances -- either because they can't get the music publisher to respond to their phone calls or because they can't afford the fees.
What is the risk? Using a sample without clearance is always risky. However, as a practical matter, if you only sell recordings at shows and don't make more than one thousand copies, your risk is reduced. The owner of the source recording will be unlikely to learn of your samples. However, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you'll have to deal with sample clearance.
Reducing the risks. If you use an uncleared sample, you can lower your risks by:
- making it unrecognizable
- not using the sample as the groove or hook
- burying it in the mix, and
- not using the title of the source music in the title of your song.
Defending a Lack of Sample Clearance
If you decide to use samples without clearance, you might be in the clear in certain situations. Under the copyright law, you don't have to obtain sample clearance if:
Your Sample Use is Not Infringing
If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there's no violation of the law.
Your Use is a Fair Use
What is fair use? Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.
Factors in determining fair use. Generally, when reviewing fair use questions, courts look for three things:
- You did not take a substantial amount of the original work.
- You transformed the material in some way.
- You did not cause significant financial harm to the copyright owner.
Don't believe the widespread myth that "less than two seconds is fair use." It's not true. Also, some courts apply this fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that any musical sampling violated the sound recording copyright.
You can use the above arguments in order to defend yourself against a lawsuit for sampling without permission. The problem: You won't know for sure which way the judge will rule. And, most likely you'll have to hire an attorney to represent you in court
When Possible, Seek Permission
You'll be on safer legal ground if you seek permission, especially if you have a record contract that puts the burden of sample clearance on your shoulders. Such contracts usually contain an indemnity clause -- which means that if you and the record company are sued, you must pay the record company's legal costs. Ouch!
Note that when you sample music from a pop recording, you need two clearances:
- one from the copyright owner of the song, who is usually a music publisher, and
- one from the copyright owner of the master tapes, which is usually a record company."
By uploading any of the instrumentals that contain samples you agree fair use doctrine
Welcome and thanks for visiting Diversal® (“Diversal”, “we” “our”, or “us”). These Terms of Conditions govern your use of Diversal.org and VibesforVisuals (together, the “Website” or the “Platform”), and all related tools, applications, data, software, and other services provided by Diversal (the “Services”).
These Terms of Conditions, together with our Privacy Policy, Community Guidelines and any other terms specifically referred to in any of those documents, constitute a legally binding agreement (the “Agreement”) between you and Diversal in relation to your use of the Website, Apps and Services (together, the “Platform”).
These Terms of Conditions are divided into the following sections:
- Privacy Policy - 1
- Community Guidelines – 4
- Acceptance of Terms of Conditions – 5
- Changes to Terms of Conditions – 6
- Description of the Platform – 6
- Your Profile – 6
- Your Use of the Platform – 6
- Your Content – 9
- Grant of License – 9
- Representations and Warranties – 10
- Liability for Content – 11
- Reporting Infringements – 11
- Blocking and Removal of Content – 11
- Disclaimer – 12
- Limitation of Liability – 13
- Indemnification – 13
- Data Protection and Privacy - 14
Your privacy is important to us. This Privacy Policy explains how we collect, store, use and disclose your information when you use Diversal® and VibesforVisuals (“Diversal”, “we” “our”, or “us”).
By using this Platform and in particular by registering a Diversal® account, you are consenting to the use of your information in the manner set out in this Privacy Policy.
Everything we do, want to do it in the best interest for our users. If you do not agree to any of the provisions of this Privacy Policy, you should not use the Website, or any of the Services within. If you have any questions or concerns, you can contact us at This email address is being protected from spambots. You need JavaScript enabled to view it.
Please note that this Privacy Policy only applies to Diversal®. When using the Platform, you may find links to other websites, apps and services, or tools that enable you to share information with other websites, apps and services. Diversal is not responsible for the privacy practices of these other websites, apps and services and we recommend that you review the privacy policies of each of these websites, apps or services before connecting your Diversal® account or sharing any personal data.
What we want for users
- We want you to have full transparency
- We want you to have full control over your information
If there’s anything that’s not clear from this Privacy Policy, please feel free to email us at This email address is being protected from spambots. You need JavaScript enabled to view it.
The following is what is covered in the Privacy Policy:
Information we collect about you
How we use your information
Sharing of your information
Information we collect about you
Information provided by you
All users of Diversal who wish to access the full site will need to provide the following information:
- Email address
- Your month and year of birth
- Password of choice
- Your real name
- A user name (which may be your real name or a pseudonym)
- The city and country in which you live
- A profile picture or avatar
- User/Artist Type: This is how we will categorize your profile.
- Details of your other websites and social media profiles, including links to those websites and profiles
- In addition, if you purchase a premium account, you will also need to provide your real name, billing address and payment verification information.
Information that you post:
You may provide personal data when you
- Upload music compositions
- Post in the Platform
- When you post comments
- Or contribute to community discussions.
Any information you do provide may be deleted, edited, changed or amended by you at any time.
Information we collect automatically
There is certain information that we collect automatically as the result of your use of the Platform
- The Internet Protocol (IP) address of the device from which you access the Platform (this can sometimes be used to derive the country or city from which you are accessing the Platform)
- The specific actions that you take on the Platform, including the pages that you visit, streaming or down/uploading compositions, sharing content, or posting a comment
- Any search terms that you may enter on the Website
- The time, frequency and duration of your visits to the Platform
- Your browser type and operating system
- Whether you are accessing the Platform from a personal computer or from a mobile device
How we use your information
We use the information that we collect about you for the following purposes:
- To operate and maintain your Diversal® account, and to provide you with access to the Website and use of any Services that you may request from time to time.
- Your email address and password are used to identify you when you log into the Platform.
- To identify you as the creator of the sounds that you upload, the comments that you post and/or the other contributions that you make to the Platform.
- To respond to you about any comment or enquiry you have submitted.
- To prevent or take action against activities that are, or may be, in breach of our Terms & Conditions, Community Guidelines or applicable law.
- To improve your experience as a user and to respond with any technical support
- If you subscribe to a premium account, your name, address and payment verification information will be used to process your account subscription and renewals and to collect your payment. All payment verification information is transmitted using industry-standard SSL (Secure Socket Layer) encryption.
- Your email address will be used to send you service updates and notifications regarding your account
Sharing of your information
- We will not share your information with any third party unless given the following circumstances:
- With your consent: We will disclose your information if you have explicitly agreed that we may do so. We will make this clear to you at the point at which we collect your information.
Questions?
- These policies are subject to change for a more optimal user experience as the Platform grows.
- If you have questions about this Privacy Policy, want to suggest changes to this Privacy Policy or want to know, what information we store about you, please contact us by email at This email address is being protected from spambots. You need JavaScript enabled to view it.
We aim for Diversal to be the place for positivity, creativity and motivation and have designed a project-oriented and open environment for users to further expand this goal. This page includes important information about our expectations of you while using Diversal. Please take the time read this, as we take these guidelines seriously.
Protect & Credit
Diversal fosters the creative community. With many content-creators, we want to assure every creator gets the credit they deserve.
All rights belong to their respective owners
You are responsible for all activity associated with your account and it is your responsibility to ensure that you have the permission of all relevant rights holders in order to post that content on Diversal. Anyone uploading another person’s content without the necessary permissions is liable to have that content removed or their account terminated.
If you are unsure whether you can upload something,
See our Resource page or email us This email address is being protected from spambots. You need JavaScript enabled to view it.
If you feel that someone is infringing your copyright, tell us about it.
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Values
Diversal wants to support any creator and help their creative visions come true while providing an open environment to locate other creative to connect and collaborate, equipped with the power to build the site using content-generation tools.
Although we support Freedom of Speech, Diversal will not be a platform of opinions (except for the commentary & feedback tools on certain content), rather a platform of creative content and resourceful newsworthy content that could elicit motivation or induce productive or collaborative opportunity. Respecting the values of positivity, happiness, creativity, collaboration, education and resourceful information is mandatory.
Constructive Feedback:
Feedback is a valuable tool for artist development, so save the nasty comments for other platforms, instead, give constructive feedback if need be. Or, work with them! If there is something you dislike, present your feedback with an idea for improvement.
Forbidden content
Freedom of creative expression is important to us. However, there are certain types of content that have no place on Diversal. In order to protect the community and maintain positivity, please don’t post or engaging in the following type of activity or risk the immediate, suspension or permanent termination of your account:
-Pornography
-Hate speech
-Bullying
-Abusive, threatening language or behavior
-Vulgar
-Defaming
-Negativity (Case by case basis)
Spam, Malware & prohibited services
We aim for Diversal to be a spam-free, malware-free safe zone with a security team working around the clock.
The following activity is not permitted:
- Creating multiple accounts with the intention of inflating the
Popularity of other profiles
- The creation, use, or promotion of Bots or other automated means to perform social interactions;
- Instilling malware
- Tampering code
Say Something
If you see something you disagree with tell us.
If you uncover faulty applications, tell us.
If you have copyright issues, tell us.
If you uncover fraudulent activity, tell us.
If we didn’t cover something you wish we need to address, tell us.
This email address is being protected from spambots. You need JavaScript enabled to view it.
Be considerate of others as you assist in building the platform.
What’s your art?
Acceptance of Terms of Conditions
If you do not agree to any of the provisions set out the Terms & Conditions, Privacy Policy, and Community Guidelines you should not use the Website or any of the Services.
By accessing or using the Platform, registering an account, or by viewing, accessing, streaming, uploading or downloading any information or content from or to the Platform, you represent and warrant that you have read and understood the Terms of Conditions, Privacy Policy, and Community Guidelines and will abide by them.
Changes to Terms of Conditions
We reserve the right to change, alter, replace or otherwise modify these Terms of Conditions at any time. The date of last modification is stated at the end of these Terms of Conditions. It is your responsibility to check this page from time to time for updates.
Description of the Platform
The Platform is a content-publishing service. Registered users of the Platform may submit, upload and post, following the rules set forth in the Community Guidelines, audio, text, photos, pictures, graphics, comments, and other content, data or information (“Content”), which will be stored by Diversal at the direction of such registered users, and may be shared and distributed by such registered users.
The Platform also enables registered users to interact with one another and to contribute to discussions, and enabling any user to view, listen to and share Content uploaded and made available by registered users.
As time moves forward, we will release new tools and resources on the Website, introduce other services and/or features for the Platform, to provide a more optimal experience. Any new services and features will be subject to these Terms of Conditions as well as any additional Terms of Conditions that we may release for those specific services or features.
Your Profile
It is not a must to register, however, access to the entire Platform and Services is only available to registered users. See Privacy Policy for more info.
You are solely responsible for maintaining the confidentiality and security of your username and password, and all other content from your profile.
If your username or password is lost or stolen, or if you believe that your account has been accessed by unauthorized third parties and tried all available options; please inform us ASAP.
We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your account if activities occur on that account which, in our sole discretion, would or might constitute a violation of these Terms of Conditions or our Community Guidelines, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
You may terminate your account at any time. But before doing so, work with us and let us know why, maybe we can still help.
Your Use of the Platform
In compliance with these Terms of Conditions, Privacy Policy and our Community Guidelines, Diversal® grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to:
(i) Submit, upload or publish Content to the Platform strictly as permitted in accordance with these Terms of Conditions and any other applicable terms posted on the Website from time to time;
(ii) Participate in the community areas and communicate with other members of the Diversal® community strictly in accordance with these Terms of Conditions, Privacy Policy and our Community Guidelines, and
(iii) Other Services provided as part of the Platform strictly as permitted in accordance with these Terms of Conditions and any other terms applicable.
The above licenses are conditional upon your strict compliance with these Terms of Conditions and our Community Guidelines including, without limitation, the following:
(i) You must not copy, rip or capture, or attempt to copy, rip or capture, any music composition from the Platform or any part of the Platform, other than by means of download in circumstances where the relevant Uploaded has elected to permit downloads of the relevant item of Content.
(ii) You must not adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any Content on or from the Platform, except (i) where such Content is Your Content, or (ii) as permitted under these Terms of Conditions, and within the parameters set by the Uploader
(iii) You must not use any Content (other than Your Content) in any way that is designed to create a separate content service or that replicates any part of the Platform offering.
(iv) You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent the popularity of Your Content on the Platform, or to misrepresent your activity on the Platform, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, add followers to your account, play Content, follow or unfollow other users, send messages, post comments, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Platform.
(v) You must not alter or remove, attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Platform or any Content appearing on the Platform (other than Your Content).
(vi) You must not, and must not permit any third party to, copy or adapt the object code of the Website or any of the Apps or Services, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Platform, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to Content other than Your Content.
(vii) You must not use the Platform to upload, post, and store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
- Any Content that is offensive, abusive, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation
- Any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or
- Any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful according to the DCMA;
- Any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which or might overburden, impair or disrupt the Platform or servers or networks forming part of, or connected to, the Platform, or which does or might restrict or inhibit any other user's use and enjoyment of the Platform; or
- Any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
(viii) You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law or regulation.
(ix) You must not rent, sell or lease access to the Platform, or any Content on the Platform, although this shall not prevent you from including links from Your Content to any legitimate online download store from where any item of Your Content may be purchased.
(x) You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
(xi) You must not stalk, exploit, threaten, abuse or otherwise harass another user.
(xii) You must not use or attempt to use another person's account, password, or other information, unless you have express permission from that other person.
(xiii) You must not sell or transfer, or offer to sell or transfer, any Diversal account to any third party without the prior written approval of Diversal.
(xiv) You must not collect or attempt to collect personal data, or any other kind of information about other users
(xv) You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by Diversal or any Uploader; access or attempt to access data or materials which are not intended for your use; log into, or attempt to log into, a server or account which you are not authorized to access; attempt to scan or test the vulnerability of Diversal servers, system or network or attempt to breach Diversal data security or authentication procedures; attempt to interfere with the Website or the Services by any means including, without limitation, hacking Diversal’s servers or systems, submitting a virus, overloading, mail-bombing or crashing.
Without limitation to any other rights of Diversal under these Terms of Conditions, Diversal reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and co-operate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.
You agree to comply with the above conditions, and acknowledge and agree that Diversal has the right, in its sole discretion, to terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms & Conditions. This may include taking court action and/or reporting offending users to the relevant authorities.
Your Content
Any and all content, data or information that you upload, store, transmit, submit, exchange or make available to or via the Platform (hereinafter "Your Content") is generated, owned and controlled solely by you, and not by Diversal.
Diversal does not claim any ownership rights in Your Content, and you hereby expressly acknowledge and agree that Your Content remains your sole responsibility.
Any unauthorized use of copyright protected material within Your Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Platform) may constitute an infringement of third party rights and is strictly prohibited. Any such infringements may result in termination of your access to the Platform.
Grant of License
By uploading or posting Your Content to the Platform, you initiate an automated process to transcode any music composition directing Diversal to store Your Content on our servers, from where you solely may control and authorize the use, reproduction, transmission, distribution, public display, public performance, making available and other communication to the public of Your Content on the Platform and elsewhere using the Services.
You can limit and restrict the availability of Your Content to other users of the Platform at any time using the settings on the sound page for each sound you upload, subject to the provisions of the disclaimer section below.
Licenses with respect to music composition, and any images or text within your account, will (subject to the following paragraph of these Terms of Conditions) terminate automatically when you remove such Content from your account.
Removal of music composition from your account will automatically result in the deletion of the relevant files from Diversal’s systems and servers.
Any Content other than Your Content is the property of the relevant Uploader, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Platform from time to time and within the parameters set by the Uploader on the Platform or with the express written consent of the Uploader.
Where you repost another user’s Content, or include another user’s Content in a set, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this section, all rights in Content are reserved to the relevant Uploader.
Representations and Warranties
You hereby represent and warrant to Diversal as follows:
(i) Your Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licenses, consents and permissions necessary in order to use, and (if and where relevant) to authorize Diversal to use, Your Content pursuant to these Terms of Conditions, including, without limitation, the right to upload, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available and otherwise communicate to the public Your Content, and each and every part thereof, on, through or via the Website, any and all Services.
(ii) Your Content and the availability thereof on the Platform does not and will not infringe or violate the rights of any third party, including, without limitation, any intellectual property rights, performers’ rights, rights of privacy or publicity, or rights in confidential information.
(iii) You have obtained any and all necessary consents, permissions and/or releases from any and all persons appearing in Your Content in order to include their name, voice, performance or likeness in Your Content and to publish the same on the Platform and via any Linked Services.
(iv) Your Content, including any comments that you may post on the Website, is not and will not be unlawful, offensive, abusive, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on grounds of race, gender, religion or sexual orientation.
(v) Your Content does not and will not create any liability on the part of Diversal, its affiliates and their respective employees, personnel and/or shareholders.
Diversal reserves the right to remove Your Content, suspend or terminate your access to the Platform and/or pursue all legal remedies if we believe that any of Your Content breaches any of the foregoing representations or warranties, or otherwise infringes another person's rights or violates any law, rule or regulation, including restrictions outlined in the Community Guidelines.
Liability for Content
You hereby acknowledge and agree that Diversal
(i) Stores Content and other information at the direction, request and with the authorization of its users,
(ii) Acts merely as a passive conduit and/or host for the uploading, storage and distribution of such Content, and
(iii) Plays no active role and gives no assistance in the presentation or use of the Content.
You are solely responsible for all of Your Content that you upload, post or distribute to, on or through the Platform, and to the extent permissible by law, Diversal excludes all liability with respect to all Content (including Your Content) and the activities of its users with respect thereto.
Reporting Infringements
If you discover any Content on the Platform that you believe infringes your copyright, please report this to us! This email address is being protected from spambots. You need JavaScript enabled to view it.
Please make sure that you include the following information:
- A statement that you have identified Content on Diversal® that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act;
- A description of the copyright work(s) that you claim have been infringed;
- A description of the Content that you claim is infringing and the Diversal URL(s) where such Content can be located;
- Your full name, address and telephone number, a valid email address on which you can be contacted, and your Diversal® user name if you have one;
- A statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
- A statement by you that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
Blocking and Removal of Content
Even though Diversal has no legal obligation to monitor the Content on the Platform, Diversal reserves the right to block, remove or delete any Content at any time, and to limit or restrict access to any Content, for any reason and without liability, including without limitation, if we have reason to believe that such Content does or might infringe the rights of any third party, has been uploaded or posted in breach of these Terms of Conditions, our Community Guidelines or applicable law, or is otherwise unacceptable to Diversal.
Please also note that individual Uploaders have control over the music compositions that they store in their account from time to time, and may remove any or all music compositions or other Content without notice. You have no right of continued access to any particular item of Content and Diversal shall have no liability in the event that you are unable to access an item of Content due to its removal from the Platform, whether by Diversal or the relevant Uploader.
Disclaimer
THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE WEBSITE, AND SERVICES ACCESSED THROUGH OR VIA THE WEBSITE, THE APPS OR OTHERWISE, ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”.
WHILST DIVERSAL USES REASONABLE ENDEAVOURS TO CORRECT ANY ERRORS OR OMISSIONS IN THE PLATFORM AS SOON AS PRACTICABLE ONCE THEY HAVE BEEN BROUGHT TO DIVERSAL’S ATTENTION, DIVERSAL MAKES NO PROMISES, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) REGARDING THE WEBSITE, THE APPS, THE SERVICES OR ANY PART OR PARTS THEREOF, ANY CONTENT, OR ANY LINKED SERVICES OR OTHER EXTERNAL SERVICES. DIVERSAL DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR ANY PART OR PARTS THEREOF, THE CONTENT, OR THE SERVERS ON WHICH THE PLATFORM OPERATES ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DIVERSAL DOES NOT WARRANT THAT ANY TRANSMISSION OF CONTENT UPLOADED TO THE PLATFORM WILL BE SECURE OR THAT ANY ELEMENTS OF THE PLATFORM DESIGNED TO PREVENT UNAUTHORISED ACCESS, SHARING OR DOWNLOAD OF CONTENT WILL BE EFFECTIVE IN ANY AND ALL CASES, AND DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION.
DIVERSAL AND THEIR RESPECTIVE EMPLOYEES, SPECIFICALLY DISCLAIM ALL OF THE FOREGOING WARRANTIES AND ANY OTHER WARRANTIES NOT EXPRESSLY SET OUT HEREIN TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES REGARDING NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
WHERE THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES TO THIS AGREEMENT.
Limitation of Liability
IN NO EVENT SHALL DIVERSAL’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE GREATER OF 100 DOLLARS OR THE AMOUNTS (IF ANY) PAID BY YOU TO DIVERSAL DURING THE PREVIOUS TWELVE (12) MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
DIVERSAL AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SHALL HAVE NO LIABILITY FOR:
- ANY LOSS OR DAMAGE ARISING FROM:
(A) YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR ANY PART OR PARTS THEREOF, OR TO ACCESS ANY CONTENT OR ANY EXTERNAL SERVICES VIA THE PLATFORM;
(B) ANY CHANGES THAT DIVERSAL MAY MAKE TO THE PLATFORM OR ANY PART THEREOF, OR ANY TEMPORARY OR PERMANENT SUSPENSION OR CESSATION OF ACCESS TO THE PLATFORM OR ANY CONTENT IN OR FROM ANY OR ALL TERRITORIES;
(C) ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTSHOLDERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY’S RIGHTS RELATING TO YOUR CONTENT OR YOUR USE OF THE PLATFORM, OR ANY ACTION TAKEN AS PART OF AN INVESTIGATION BY DIVERSAL OR ANY RELEVANT LAW ENFORCEMENT AUTHORITY REGARDING YOUR USE OF THE PLATFORM;
(D) ANY ERRORS OR OMISSIONS IN THE PLATFORM’S TECHNICAL OPERATION, OR FROM ANY INACCURACY OR DEFECT IN ANY CONTENT OR ANY INFORMATION RELATING TO CONTENT;
(E) YOUR FAILURE TO PROVIDE DIVERSAL WITH ACCURATE OR COMPLETE INFORMATION, OR YOUR FAILURE TO KEEP YOUR USERNAME OR PASSWORD SUITABLY CONFIDENTIAL;
- ANY LOSS OR DAMAGE TO ANY COMPUTER HARDWARE OR SOFTWARE, ANY LOSS OF DATA (INCLUDING YOUR CONTENT), OR ANY LOSS OR DAMAGE FROM ANY SECURITY BREACH; AND/OR
- ANY LOSS OF PROFITS, OR ANY LOSS YOU SUFFER WHICH IS NOT A FORESEEABLE CONSEQUENCE OF DIVERSAL BREACHING THESE TERMS OF USE. LOSSES ARE FORESEEABLE WHERE THEY COULD BE CONTEMPLATED BY YOU AND DIVERSAL AT THE TIME YOU AGREE TO THESE TERMS OF USE, AND THEREFORE DO NOT INCLUDE ANY INDIRECT LOSSES, SUCH AS LOSS OF OPPORTUNITY.
- ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM MUST BE NOTIFIED TO DIVERSAL AS SOON AS POSSIBLE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, YOU ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS
-REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DIVERSAL AND
-ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN YOU AND DIVERSAL, AND THAT DIVERSAL’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
NOTHING IN THESE TERMS OF USE LIMITS OR EXCLUDES THE LIABILITY OF DIVERSAL AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND/OR SHAREHOLDERS:
(I) FOR ANY DEATH OR PERSONAL INJURY CAUSED BY ITS OR THEY’RE NEGLIGENCE,
(II) FOR ANY FORM OF FRAUD OR DECEIT,
(III) FOR ANY DAMAGES CAUSED WILFULLY OR BY GROSS NEGLIGENCE, OR
(IV) FOR ANY FORM OF LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
Indemnification
You hereby agree to indemnify, defend and hold harmless Diversal against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys' fees, resulting from:
(i) Any violation by you of these Terms of Use or our Community Guidelines
(ii) Any third party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Your Content on the Platform, and/or your making available thereof to other users of the Platform, and/or the actual use of Your Content by other users of the Platform or Linked Services in accordance with these Terms of Use and the parameters set by you with respect to the distribution and sharing of Your Content;
(iii) Any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Diversal.
Data Protection and Privacy
All personal data that you provide to us in connection with your use of the Platform is collected, stored, used and disclosed by Diversal in accordance with our Privacy Policy.