Harvest Media reserves the right to, at any time:
- modify the terms of this Agreement, (for example, for security, legal, or regulatory reasons) as required from time to time in its sole discretion.
Where a variation or modification to the terms of this Agreement could reasonably be expected to adversely affect you or cause detriment to you, Harvest Media will notify such proposed variation or modification to you by sending a notice to the email address of the nominated contact on your account. These updates will come into effect 30 days after such notification is sent.
Description of the Platform
Your Use of the Platform
Without limiting any of Harvest Media’s rights or remedies under this Agreement, Harvest Media grants you a licence in this Agreement in reliance on the indemnities given by you as set out under the Indemnification heading below.
- You must not copy, rip or capture, or attempt to copy, rip or capture, any audio Content from the Platform or any part of the Platform, other than by means of download or store for offline listening in circumstances where the relevant Uploader has elected to permit downloads or offline listening of the relevant item of Content.
- You must not adapt, copy, republish, reproduce, vary, reverse engineer, decompile, circumvent, alter, modify, 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 or any Materials, except:
- where such Content is your Content (Your Content), or
- 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.
- You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
- 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 territorial restrictions or access any rights management information pertaining to Content other than Your Content.
- You must not use the Platform to upload, post, store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
- any Content that is abusive, libellous, defamatory, pornographic or obscene, that promotes or incites violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation, or is otherwise objectionable in Harvest Media’s reasonable discretion;
- any information, Content or other material that violates, plagiarises, 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 illegal or unlawful in Harvest Media’s reasonable opinion;
- 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.
- You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
- 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.
- You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any Harvest Media employee or contractor.
- 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.
- You must not sell or transfer, or offer to sell or transfer, any Harvest Media account to any third party without the prior written approval of Harvest Media.
- You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
Your Harvest Media Account
You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by you. If your username or password is lost or stolen, or if you believe that your account has been accessed by unauthorized third parties, you are advised to notify Harvest Media in writing, and should change your password at the earliest possible opportunity.
You may terminate your account at any time provided you provide Harvest Media at least 30 days’ written notice as described in the Termination section below.
Any and all audio, text, photos, pictures, graphics, comments, and other 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 Harvest Media.
Harvest Media does not claim any ownership rights in Your Content, and you hereby expressly acknowledge and agree that Your Content remains your sole responsibility.
Without prejudice to the conditions set forth in your Use of the Platform, you must not upload, store, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any Content to which you do not hold the necessary rights. In particular, 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 and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rightsholder.
We may, from time to time, invite or provide you with means to provide feedback regarding the Platform, and in such circumstances, any feedback you provide will be deemed non-confidential and Harvest Media shall have the right, but not the obligation, to use such feedback on an unrestricted basis.
Grant of Licence to Harvest Media
The Licensor makes the Catalogue available for the Business Purpose, via the Software, under licence from the owners or controllers of copyright in the Catalogue. The Licensee’s right (if any) to secure licences for third parties to reproduce, adapt, edit, communicate or synchronise Catalogue material with or without audio-visual material, and to perform, broadcast, communicate or transmit such Catalogue material with audio-visual material, whether or not using the Software, is contingent on the Licensee obtaining a valid and substituting licence to do so from the owner or controllers of copyright in the relevant item of Catalogue (for example, in the case of so-called “industry blanket licences”, from Copyright Collecting Societies).
Removal of audio Content from your account will result in the deletion of the relevant files from Harvest Media’s systems and servers. However, notwithstanding the foregoing, you hereby acknowledge and agree that once Your Content is distributed to a Linked Service, Harvest Media is not obligated to ensure the deletion of Your Content from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Platform or any Linked Service deletes any item of Your Content.
Representations and Warranties
You hereby represent and warrant to Harvest Media as follows:
- 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.
- 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.
- Your Content, including any comments that you may post, is not and will not be unlawful, abusive, libellous, defamatory, pornographic or obscene, and will not promote or incite violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation.
- Your Content does not and will not create any liability on the part of Harvest Media, its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders. Harvest Media 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.
Liability for Content
You hereby acknowledge and agree that Harvest Media (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, Harvest Media excludes all liability with respect to all Content (including Your Content) and the activities of its users with respect thereto.
Harvest Media and its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders hereby exclude, to the fullest extent permitted by law, any and all liability which may arise from any Content uploaded to the Platform by users, including, but not limited to, any claims for infringement of intellectual property rights, rights of privacy or publicity rights, any claims relating to publication of abusive, defamatory, pornographic, or obscene material, or any claims relating to the completeness, accuracy, currency or reliability of any information provided by users of the Platform. By using the Platform, you irrevocably waive the right to assert any claim with respect to any of the foregoing against Harvest Media or any of its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders.
Third Party Websites and Services
Harvest Media will provide you with access to online documentation and support through an online help system. The Platform may also provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, including without limitation, Linked Services (hereinafter “External Services”). Harvest Media does not have or maintain any control over External Services, and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, Harvest Media does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.
You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services.
Harvest Media disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against Harvest Media with respect to the content or operation of any External Services.
Blocking and Removal of Content
The Platform, including, without limitation, the website, the apps, the API and all content and services accessed through or via the website, the apps, the API, the services or otherwise, are provided “as is”, “as available”, and “with all faults”.
Whilst Harvest Media uses reasonable endeavours to correct any errors or omissions in the Platform as soon as practicable once they have been brought to Harvest Media’s attention, Harvest Media 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. Harvest Media 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. Harvest Media 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 unauthorized 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.
Harvest Media and its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and shareholders, 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
Harvest Media and its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and shareholders, shall have no liability for:
- any loss or damage arising from:
- 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;
- any changes that Harvest Media 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;
- 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 Harvest Media or any relevant law enforcement authority regarding your use of the Platform;
- 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;
- your failure to provide Harvest Media with accurate or complete information, or your failure to keep your username or password suitably confidential;
- any misconduct by other users or third parties using the Platform, especially in breach of the agreement; or
- a breach by You of this Agreement.
- 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;
Any claim or cause of action arising out of or related to your use of the Platform must be notified to Harvest Media 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 Harvest Media and are fundamental elements of the bargain between you and Harvest Media, and that Harvest Media’s liability will be limited to the maximum extent permitted by law.
Harvest Media shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
Notwithstanding the previous clause, Harvest Media’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by you respect of your subscription during the one month immediately preceding the date on which the claim arose.
You hereby agree to fully indemnify, defend and hold harmless Harvest Media, its successors, assigns, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys’ fees, resulting from:
- your use and access of the Platform;
- 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 Harvest Media;
- any claim by any third party that use of any copyright works or material via the Platform infringes any intellectual property rights of any third party or is otherwise illegal, or that providing the Platform, Harvest Media has contributed to, or authorised, any of the infringement or illegal conduct; and
- Without limiting the foregoing, you undertake to indemnify Harvest Media against any and all liability, loss, claims, demands or expenses which Harvest Media may at any time incur arising from a breach of this Agreement.
Proprietary / Intellectual Property Rights
For the purpose of this section the following definitions apply:
Materials means, separately and together the Documentation together with any and all related material, alterations, modifications and variations made to any or in any of the aforesaid.
Documentation means any manuals, user instructions, online support documentation and/or literature supplied to you in order to aid the use of the Platform.
Harvest Media and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Service, including but not limited to all trade names, trademarks, software, design, text, data, icons, logos, copyright, designs, concepts, sound recordings, graphics and service marks associated or displayed in or by the Platform (together the “Intellectual Property”). You will not remove, deface or obscure any of Harvest Media or its suppliers’ Intellectual Property and/or legends or other proprietary notices on, incorporated therein, or associated with the Platform. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service or processes contained within the Platform.
Harvest Media retains all right, title and interest in the Website and Materials, and all related content and Intellectual Property, and nothing you do on or in relation to the Website or Platform or any of the related content will transfer any rights, in Intellectual Property or otherwise, to you, or licence to you any such rights unless expressly stated otherwise.
You must notify Harvest Media immediately if you become aware of any unauthorised use of the whole or part of the Materials or Platform.
Any distribution, reprint or electronic reproduction of any content or Materials from Harvest Media in whole or in part for any other purpose other than as set out in this Agreement is expressly prohibited without Harvest Media’s prior written consent.
Data Protection, Privacy and Cookies
You acknowledge and agree that in connection with your use of the Website, you must: (a) provide for your own access to the World Wide Web and pay any service fees (if any) associated with such access; and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including, if applicable, a computer, software, a modem and a working telephone line. Harvest Media shall not be responsible for any malfunctions, errors, crashes or other adverse events that may occur from your use of the Website.
Harvest Media uses current industry-standard technology and security procedures to maintain the confidentiality and accuracy of the information you provide to us and to prevent against its loss or misuse. Although no data transmission over the Internet can be guaranteed to be 100% secure, and although Harvest Media will exercise great care to provide a secure transmission, Harvest Media does not guarantee that the personal information you submit to Harvest Media will be free from unauthorized third party intrusion. You therefore understand and agree that all information You submit to Harvest Media or post on the Website is done so at your own risk.
Changes to the Platform, Accounts and Pricing
Harvest Media reserves the right at any time and for any reason to suspend, discontinue, terminate or cease providing access to the Platform or any part thereof, temporarily or permanently, and whether in its entirety or with respect to individual territories only. In the case of any temporary or permanent suspension, discontinuation, termination or cessation of access, Harvest Media shall use its reasonable endeavours to notify registered users of such decision in advance.
You hereby agree that Harvest Media and its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders shall not be liable to you or to any third party for any changes or modifications to the Website, Apps and/or any Services that Harvest Media may wish to make from time to time, or for any decision to suspend, discontinue or terminate the Website, the Services or any part or parts thereof, or your possibility to use or access the same from or within any territory or territories.
Harvest Media may change the features of any type of account (including but not limited to any updates to the Platform and/or Materials), may withdraw, or introduce new features, products or types of account at any time and for any reason, and may change the prices charged for any of its subscriptions from time to time. In the event of any increase in the price or material reduction in the features of any subscription which you have purchased, such change(s) will be communicated to you and will only take effect with respect to any subsequent renewal of your subscription. In all other cases, where Harvest Media proposes to make changes to any type of subscription you have purchased, and these changes are material and to your disadvantage, Harvest Media will notify you of the proposed changes by sending a message to your current email address that we have for your account, at least 30 days in advance. You will have no obligation to continue using the Platform following the date being 30 days from any such notification, but if you do not terminate your account as described in the Termination section below during such 30 day period, your continued use of your account after the end of that 30 day period will constitute your acceptance of the changes to your Subscription.
By using and registering to use the Platform, you agree to pay the fees in accordance with the current rate card that is available from Harvest Media unless negotiated otherwise by via separate agreement. Such fees may be amended from time to time at Harvest Media’s sole discretion (“Fees”).
You acknowledge that Harvest Media may terminate this Agreement at any time if you fail to pay the Fees within 45 days of the payment date.
Assignment to Third Parties
Harvest Media may assign its rights and (where permissible by law) its obligations under this Agreement, in whole or in part, to any third party at any time without notice, including without limitation, to any person or entity acquiring all or substantially all of the assets or business of Harvest Media. You may not assign any benefit of this Agreement or the rights and duties hereunder, in whole or in part, to any third party without the prior written consent of Harvest Media.
Third Party Rights
All music compositions and recordings, separately and together in the production music, sound recordings, musical works and any lyrics embodied on them, and relevant metadata that are cached, archived or reproduced under licence from the relevant owners or controllers of the copyright that is stored in the database of Harvest Media and accessed via the Platform (“Catalogs”) are protected by the Copyright Act 1968 (Cth) (as amended) (“Copyright Law”)
Harvest Media makes the Catalogs available via the Platform, under licence from the owners or controllers of copyright in the Catalogs, subject to the terms of this Agreement. Your right (if any) to secure licences for third parties to reproduce, adapt, edit, communicate or synchronise Catalogs, whether or not using the Services, is contingent on You obtaining a valid and substituting licence to do so from the owner or controllers of copyright in the relevant Catalogs.
Written permission (licence) for any use must be obtained from the owner, music representative, rights owners or rights administrator. Unauthorized use of the Catalogs in any form constitutes a violation of the Copyright Law, which provides for certain penalties.
A valid licence with the owner, music representative, rights owners or rights administrator should grant you the right to both the recording (master) and the composition (musical copyright) more commonly referred to as the synchronization right. Synchronization is the right to affix music with visual images or other audio signals and to mechanically reproduce the copyrighted music in soundtracks and copies of soundtracks. Payment for a synchronization licence need be made only once. However, additional synchronization licensing becomes necessary if the original production is changed, revised or dubbed in foreign languages.
Performing rights licences are usually the responsibility of the user. In the case of broadcast, (radio, TV, cable, satellite, etc.) it is the responsibility of the broadcaster. Harvest Media herein expressly states that it does not maintain, nor is it expected to maintain, a public performance licence with any of the end-user broadcaster or transmitters of the content or material conveyed in this Agreement. A licence must be obtained from the authorized performance rights society in your territory (if applicable) or from the agent for that music or recording.
You agree to defend, indemnify and hold Harvest Media, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Platform or the placement or transmission of any message, information, software or other materials on or through the Website by you.
If your Fee payment is overdue, Harvest Media will disable your access to the features provided. Harvest Media may, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, Your Account will be disabled and you may not be granted access to Your Account or any files or other Content (including Your Content) contained in Your Account, and Harvest Media will delete Your Content, although residual copies of information may remain in Harvest Media’s system for some time for back-up purposes. In the event of termination, Harvest Media may also withdraw and at its discretion reallocate the public web address of Your Account.
If You terminate Your Account, you must provide at least 30 days’ written notice to Harvest Media either by post or electronic mail to the postal address or via email using the details in the Disclosures section below. If you request that Harvest Media delete Your Content and files contained in Your Account, Harvest Media will make all reasonable efforts to do so.
Upon termination of Your Account, you must immediately cease using the Platform and Materials and must immediately uninstall, delete and/or destroy any digital copies of Harvest Media’s Materials. For the sake of clarity upon termination, you are not permitted to reproduce, copy, retain or deal with any of Harvest Media’s Materials or Services.
For Client in the European Economic Area, you may also need to ensure that you regularly check the Data Processing Addendum.
The services hereunder are offered by Harvest Media Services Pty Ltd, a company incorporated under the laws of Australia and with its main place of business at Suite 301, 8 Hill St, Surry Hills NSW 2010, Australia. More information about Harvest Media is available here. You may contact us by sending correspondence to the foregoing address or by emailing us at firstname.lastname@example.org.
We control and operate the Platform from Harvest Media’s offices in the Australia. We do not represent that materials on the Platform are appropriate or available for use in other locations. Persons who choose to access the Platform from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Last updated: 25 April 2018