These Terms and Conditions of Use (Terms) govern your use of the OpenHD platform (Platform) and website located at www.openlive.co (Website) (the Platform and Website are collectively referred to hereafter as the OpenHD Services) and form a binding contractual agreement between you, the user of the OpenHD Services, and us, Open HD Pty Ltd ACN 169 584 276 (OpenHD)
1. Your acceptance of these Terms
1.1. By using the OpenHD Services you:
(a) signify your agreement to and acceptance of these Terms;
(b) signify your agreement to and acceptance of any other policies published on the OpenHD Services (OpenHD Policies);
(c) warrant that you are over the age of 18 and have the right and authority to enter into this Agreement or if you are under the age of 18, you have reviewed these Terms with your parent or guardian who understands and agrees to these Terms; and
(d) warrant that the performance of your obligations hereunder does not infringe the rights of any third party.
1.2. OpenHD reserves the right to vary the Terms and the OpenHD Policies at any time. Each such variation will be effective immediately upon publishing on the OpenHD Services. Your continued use of the OpenHD Services following any such variation constitutes your acceptance and agreement to be bound by the Terms and the OpenHD Policies, as varied. It is therefore important that you review the Terms and the OpenHD Policies regularly.
2. Privacy and your personal information
3.1. You may become a registered user by registering on the Website (Account). Your Account may be terminated if:
(a) OpenHD, at its sole discretion, determines that multiple accounts are held by the same individual or entity; or
(b) OpenHD, at its sole discretion, determines that you have fraudulently or dishonestly attempted to schedule the recording of a performance for which the copyright ownership is not yours or assigned to you or that you have not obtained written authorisation from the performance's copyright owner to schedule and manage the recording; or
(c) OpenHD, at its sole discretion, determines that you have established your Account with the intention of impersonating another individual or entity; or
(d) OpenHD, at its sole discretion, determines that you are in breach of, or fail to comply with, these Terms.
3.2. In the event that your Account is terminated or cancelled:
(a) you will remain liable for all amounts due under your Account up to and including the date of termination or cancellation; and
(b) OpenHD may preclude your access to the OpenHD Services (or any part thereof); and
(c) OpenHD may, at its sole discretion, permanently delete any data associated with your Account from our servers.
3.3. You may not register as a user if you were previously a user and OpenHD cancelled your Account as a result of you being in breach of these Terms (as they applied at the relevant time).
3.4. In order to register an Account and to access and use certain features of the OpenHD Services, you may be required to provide information about yourself (such as identification, contact details, preferences, and credit card or account details), as part of the registration, or as part of your continued use of the OpenHD Services. By registering an Account and using the OpenHD Services, you represent and warrant that:
(a) all registration information you submit (including any representation or warranty you provide in the course of registering) is truthful and accurate; and
(b) you will maintain the accuracy of such information at all times whilst you continue to be registered as a user and use the OpenHD Services.
4. Your passwords and account security
4.1. When you register an Account, you will be asked to choose a password for your Account. You are entirely responsible for maintaining the confidentiality and security of passwords associated with any account you use to access the OpenHD Services. You agree not to use the Account, username, email address or password of another user at any time or disclose your Account details to any third party.
4.2. You will be solely responsible for the security of your password and any and all activities that occur on your Account, whether or not those activities are authorised by you.
4.3. If you become aware of any unauthorised use of your password or Account, you must notify OpenHD immediately.
5. Access and Use
5.1. OpenHD grants you a non-exclusive, worldwide, non-transferable licence to use the OpenHD Services in accordance with these Terms.
5.2. OpenHD grants you a non-exclusive, worldwide, non-transferable licence to use the goods (including music files) you purchase through the OpenHD Services (Products) in accordance with these Terms.
5.3. You may access and use the OpenHD Services and Products (including any incidental copying that occurs as part of that use) in the normal manner, for personal non-commercial purposes.
5.4. You agree that the OpenHD Services and Products include security technology that may restrict your use of the Products to the Player and that, whether or not the Products are limited by security technology, you shall use the OpenHD Services and Products in compliance with the applicable usage rules published by OpenHD from time to time.
5.5. You shall be authorised to use the Products on up to five (5) devices at any time.
5.6. You may download previously-acquired Products no more than five (5) times.
5.7. You acknowledge that OpenHD is not liable for any loss or damage howsoever caused resulting from any action taken or reliance made by you on any information or material on the OpenHD Services.
5.8. Use of the OpenHD Services requires your use of compatible devices, internet access, and certain software (which may require periodic updates) and may be affected by the performance of these factors over which OpenHD has no control.
5.9. The OpenHD Services will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes). OpenHD reserves the right to modify, discontinue or suspend the operation of the OpenHD Services, or any part thereof, without prior notice or liability to you.
5.10. Monitoring. We have no obligation to monitor the Services but shall be entitled to review materials posted to a communications facility and, at our sole discretion, to remove any material that breaches these Terms or is otherwise objectionable.
6. Usage Rules
6.1. Use of Content. You acknowledge that all information, text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials (Content), whether posted publicly or transmitted privately, are the sole responsibility of the person from whom such Content originated. We do not control or endorse the Content and cannot guarantee the accuracy, integrity or quality of such Content and you acknowledge that by using the OpenHD Services you may be exposed to Content that is offensive and/or indecent. OpenHD will not be liable in any way for any Content or for any loss or damage of any kind resulting from the use of any Content transmitted via [the Services] and you agree to bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content.
6.2. Digital Rights Management. Most content made available on the Website is DRM-free. However, you understand that some of the Content includes a security framework using technology that protects digital information and limits your usage of the Content to certain usage rules established by OpenHD and our licensors (Usage Rules). You agree to comply with such Usage Rules, as further outlined below, and you agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components related to such Usage Rules for any reason whatsoever.
6.3. Previews. A "Preview" is a portion of a song or video, or in some cases, an entire song or video that you can play (and, if applicable, view) directly from and while you are logged on to the Service on a promotional basis at no cost to you. You may play as many Previews as you like. You may not attempt (or support others' attempts) to capture, copy, or download a Preview.
6.4. Content Usage Rules.
(a) You are authorised to use the Content only for personal, non-commercial use, and not for redistribution, transfer, assignment or sublicense, to the extent permitted by law.
(b) You may not use Content as a musical "ringer" in connection with mobile phone calls.
(c) You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or used to administer the Usage Rules, or interfere with, remove or alter any rights management information on the Content.
(d) The delivery of Content does not transfer to you any commercial or promotional use rights in same.
(e) Content in the MP3 or AAC format does not contain security technology that limits your usage of such Content and you may use them as reasonably necessary for personal, non-commercial use.
6.5. You agree that by accessing Content this constitutes your acceptance of and agreement to use such Content solely in accordance with the Usage Rules, and that any other use of the Content may constitute a copyright infringement. Any security technology, if applicable, is an inseparable part of the Content. The Usage Rules shall govern your rights with respect to the Content. We reserve the right to modify the Usage Rules at any time.
7. Personal Storage Area
7.1. You may have access, via the My Music or My Locker section of the Website or otherwise, to a personal storage area for legally acquired digital media (PSA), the content of which is your sole responsibility and is held on third party cloud servers and infrastructure not controlled by OpenHD in geographically dispersed locations.
7.2. Purchases from the Services will be delivered to the PSA. You may be allowed to copy such purchases and upload tracks to and from your hard drive into your PSA in the cloud which will function as a remote hard drive for access at a later date but for which OpenHD has no obligation to maintain access to. You acknowledge and agree that you should not rely on OpenHD or the Services for any reason. It is your responsibility to back up and store any files delivered by OpenHD or uploaded by you to your PSA. You agree to assume all risk for loss of content in your PSA.
7.3. You are reminded that all material uploaded to the PSA should be legally acquired digital content. You are responsible for ensuring the legitimate origin of all contents of the PSA and you must comply with any applicable copyright laws.
7.4. OpenHD may be required by Licensors to share aggregated, anonymous PSA usage information with content licensors and you consent to OpenHD sharing such usage information.
7.5. OpenHD may, in our sole and absolute discretion, set a streaming, and or bandwidth implementation or other usage limitation on your usage of the PSA (Fair Use Policy).
7.6. You will obtain and maintain any and all necessary licences and permissions in connection with your use of the PSA. OpenHD may terminate your access to the PSA at any time without notice and without liability to you.
8. Submission Rules
8.1. The OpenHD Services may offer interactive features that allow you to submit materials (including links to third-party content) on areas of the OpenHD Services accessible and viewable by the public.
8.2. By submitting any content or material to the OpenHD Services (UGC), notwithstanding any content or material specifically covered by a separate and mutual license agreement with OpenHD, you hereby grant a perpetual, royalty-free, non-exclusive assignable license to OpenHD to reproduce, publish, sell, distribute, license, communicate and otherwise exploit such UGC in any format and in all media, now known or hereafter devised, throughout the world. You agree that you will not be entitled to any fee for such use of the UGC.
8.3. OpenHD reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability to you.
8.4. OpenHD has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the OpenHD Services, to investigate any reported or apparent violation of these Terms, and to take any action that OpenHD in its sole discretion deems appropriate, including, without limitation, termination hereunder.
8.5. You warrant that you are the only copyright holder of the UGC submitted by you and you are not infringing any third party's copyright. You warrant that any person depicted in UGC (if applicable) submitted to the OpenHD Services, has granted permission to be portrayed in such UGC.
8.6. You hereby waive any so-called moral rights or similar rights (now or hereafter existing) in respect of any UGC under any law anywhere in the world and irrevocably consent to any act or omission in respect of any UGC without restriction in all media, whether now known or hereafter devised.
8.7. You must not add/remove any UGC to/from the OpenHD Services:
(a) unless you hold all necessary rights, licences and consents to do so;
(b) that would cause you or OpenHD to breach any law, regulation, rule, code or other legal obligation;
(c) that is, or could reasonably be, considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
(d) that would bring OpenHD, or the OpenHD Services, into disrepute; or
(e) that infringes the intellectual property or other rights of any person.
9.1. In using the OpenHD Services you agree that, unless you are specifically allowed to do so under the terms of a separate agreement with OpenHD, you shall not (and not authorise any other person to):
(a) use, or allow to be used, the OpenHD Services or Products for any unlawful purpose or in any unlawful manner;
(b) use the Services to send junk email, spam, chain letters, pyramid schemes or any other unsolicited messages, commercial or otherwise;
(c) impersonate any other person;
(d) make any commercial use of the OpenHD Services or Products, or any part thereof;
(e) access (or attempt to access) the OpenHD Services or Products by any means other than through the interface that is provided by OpenHD;
(f) access (or attempt to access) the OpenHD Services or Products through any automated means (including use of scripts or web crawlers);
(g) "frame" or "mirror" the OpenHD Services or any part thereof on any other server or Internet-enabled device;
(h) post, publish, distribute or disseminate material or information that is defamatory, infringing, obscene, indecent, threatening, abusive, harassing or unlawful;
(i) post, publish, distribute or disseminate material or information that incites discrimination, hate or violence towards any person or group on account of their race, religion, disability, nationality or otherwise;
(j) reproduce, duplicate, or copy any part of the OpenHD Services or Products for any purpose;
(k) copy, modify, adapt, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the OpenHD Services or Products or any part thereof;
(l) threaten, abuse, disrupt, stalk or otherwise violate the legal rights (including rights of privacy and publicity) of others;
(m) use any information or material in any manner that infringes any copyright, trademark, patent or other proprietary right of any party;
(n) make available or upload files that contain a virus, worm, trojan or corrupt data that may damage the operation of the computer or property of another;
(o) collect or store personal information about others, including email addresses, log-in details or other credentials;
(p) violate any applicable laws or regulations;
(q) advertise or offer to buy or sell goods or services for any commercial purpose, unless such communication facility specifically allows such messages;
(r) use the Services in any manner that could damage, disable, overburden or impair the Services or interfere with any other party's use and enjoyment of the Services;
(s) attempt to gain unauthorised access to any of the Services, other accounts, computer systems or networks connected to the Services through hacking, password mining or any other means;
(t) infringe upon the rights of any other person's proprietary rights.
10. Content and proprietary rights
10.1. You acknowledge and agree that OpenHD (or OpenHD's licensors) own all legal right, title and interest (in law and equity) in and to the OpenHD Services and Intellectual Property rights which subsist in the OpenHD Services and Products (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with OpenHD, nothing in these Terms gives you a right in or to any Intellectual Property.
10.2. In using the OpenHD Services you agree that you shall not (and will not permit anyone else) to adapt, reproduce, store, distribute, transmit, print, display, publish or create derivative works from any Intellectual Property on the OpenHD Services. You agree that you will not use any Intellectual Property in a way that is likely or intended to cause confusion about the owner or authorised user of the Intellectual Property.
10.3. For the purpose of this Clause, Intellectual Property includes, but is not limited to, designs, patterns, artworks, photography, literary works, musical works, sound recordings, cinematograph films, trademarks, service marks, trade names and logos.
11. Linking to this Website
11.1. You may link to the OpenHD Services, provided you do so in a way that is fair and legal and does not damage OpenHD's reputation or takes advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement where none exists.
12.1. Your use of the OpenHD Services includes the ability to enter into agreements and/or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into through the OpenHD Services.
12.2. OpenHD utilises the OpenHD Services of third parties to process payments on the OpenHD Services. You are responsible for making your own enquiries into and abiding by the terms and conditions of use of the relevant third party payment processing entity. All enquires or issues relating to payment processing must be directed to the relevant third party payment processing entity. In no event shall OpenHD be responsible or liable for any payment processing issue or error.
12.3. OpenHD will not be responsible whatsoever for any damages or consequential losses (whether direct or indirect) suffered by a customer whose credit card is fraudulently used or is used in an unauthorised manner.
12.4. To the maximum extent permitted by law, all transactions entered into through the OpenHD Services are final and any payment you make to OpenHD is non-refundable.
12.5. You agree that you will pay for all Products you purchase through the OpenHD Services, and that OpenHD may charge your payment method for any Products purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your Account.
12.6. Your total price will include the price of the Product plus any applicable goods and services tax.
12.7. Prices for Products offered via the OpenHD Services may change at any time, and the OpenHD Services do not provide price protection or refunds in the event of a price reduction or promotional offering.
12.8. If a Product becomes unavailable following a transaction but prior to download or fulfilment, your sole remedy is a refund or store credit. If technical problems prevent or unreasonably delay delivery of your product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by OpenHD at its sole discretion.
12.9. By pre-ordering products, you are authorising the OpenHD Services to automatically charge your credit card when the Product becomes available. You may cancel your pre-order prior to the time the Product becomes available.
12.10. You are solely responsible for accessing, storing and retaining records of your transactions with OpenHD.
13. Warranty and Limitation of Liability
13.1. The OpenHD Services are provided "as is", without any warranty of any kind. OpenHD expressly disclaims all implied warranties to the maximum extent allowed by law, whether express, implied, or statutory regarding or relating to the OpenHD Services, Products, documentation, or any materials furnished or provided to you under these terms. To the maximum extent allowed by law, OpenHD specifically disclaims all implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to the foregoing.
13.2. To the maximum extent permitted by law, OpenHD, affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners, licensees and licensors (collectively, the "Related Parties") disclaim all liability, whether based in contract, tort (including negligence), strict liability or otherwise, and further disclaims all losses, including without limitation direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with access to or use of the OpenHD Services and/or Products even if OpenHD and/or Related Parties have been advised of the possibility of such damages. Without limiting the foregoing, in no case shall the liability of OpenHD or any of the Related Parties exceed the greater of $50 or the total OpenHD payments made by you to OpenHD in the three (3) months prior to the time the cause of action giving rise to liability arose.
14.1. You agree to indemnify, hold harmless and defend OpenHD and the Related Parties at your expense, against any and all claims, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable solicitors' fees and other dispute resolution expenses) incurred by OpenHD arising out of or relating to:
(a) your violation or breach of any term of these Terms or any policy or guidelines referenced herein;
(b) your use or misuse of the OpenHD Services;
(c) any purchase related to any OpenHD Services, including Products;
(d) submission of any and all UGC;
(e) any aspect of the OpenHD Services that does not function as intended for any reason beyond the reasonable control of OpenHD and particularly in connection with: service interruptions caused by an internet service provider; an internet connection; any fault or deficiency in computer hardware or software; any fault or deficiency in audio hardware/software; any fault or deficiency in website code.
14.2. OpenHD expressly disclaims any responsibility for the content displayed on the Website or made available as part of any OpenHD Services, and by the OpenHD Services, you agree that OpenHD and/or the Related Parties shall have no responsibility for any content that infringes the copyright or other intellectual property rights of any third party or for any content that is deemed to be offensive, discriminatory or misleading in any way whatsoever.
14.3. You hereby irrevocably waive any right to seek or obtain an injunction, rescission or termination of these Terms, or any rights hereunder.
14.4. Should OpenHD in its sole discretion, determine you have breached these Terms, then nothing herein shall prevent or in any way restrict its right to pursue any of its legal and/or other remedies, including, without limitation, court action.
15.1. Notwithstanding any other provision of this Agreement, OpenHD and its licensors reserve the right to change, suspend, remove, or disable access to any Products, content, or other materials comprising a part of the OpenHD Services at any time without notice. In no event will OpenHD be liable for making these changes. OpenHD may also impose limits on the use of or access to certain features or portions of the OpenHD Services, in any case and without notice or liability.
15.2. You agree that you shall be solely responsible for (and that OpenHD has no responsibility to you or to any third party for) any breach of your obligations or any representation or warranty you provide under these Terms and for the consequences of any such breach (including any loss or damage, howsoever caused, which OpenHD or any third party may suffer).
15.3. If a provision of these Terms are determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions which will continue to be valid to the fullest extent permitted by law.
15.4. Failure or omission by OpenHD to enforce or require strict performance or timely compliance with any provision of these Terms will not affect or impair that provision, or OpenHD's rights thereto and shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
15.5. These Terms and any document expressly referred to in them represent the entire understanding and agreement between the parties in relation to use of the OpenHD Services and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
15.6. Each party must, at its own expense, do everything reasonably necessary to give full effect to this Agreement.
15.7. This Agreement is governed by the laws of Victoria, Australia and each party submits to the jurisdiction of the courts of Victoria Australia.