TERMS OF SERVICE FOR SAMSUNG MILK MUSIC
Effective Date: July 30, 2015
Samsung Electronics America, Inc.
together with its affiliates (“Samsung”, “we”, “us”, or “our”) is pleased to offer you Samsung Milk Music, an application for mobile and other devices that allows you to access music content provided by Samsung, its licensors, and/or its third party contractors ("Service”). This Agreement (“Agreement”) is a binding contract between you and Samsung which governs the use of the Service. The Service is only for your own personal use. You may not use the Service for any commercial purpose or in any way not expressly permitted by this Agreement. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND SAMSUNG.
THE SERVICE IS NOT INTENDED FOR USE BY ANYONE UNDER THE AGE OF 13. IF YOU ARE UNDER THE AGE OF 13, YOU MAY NOT USE THE SERVICE OR PROVIDE SAMSUNG WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. If you are 13 or older but under the age of 18, you represent that you have reviewed these terms and conditions with your parent or legal guardian and that you and your parent or guardian understand and consent to these terms and conditions. If you are a parent or guardian permitting a person under the age of 18 (“Minor”) to use the Service, you agree to: (i) supervise the Minor’s use of the Service; (ii) assume all risks associated with the Minor’s use of the Service, including the transmission of content to and from third parties via the Internet; (iii) assume any liability resulting from the Minor’s use of the Service; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and are bound by this Agreement for the Minor’s access and use of the Service.
Samsung may modify this Agreement from time to time. If we change this Agreement, we will update the Effective Date listed above. If you continue to access or use the Service after such modification, you will be deemed to have read, understood and unconditionally agreed to such changes.
1.1 Grant of License. Subject to the terms and conditions of this Agreement, Samsung hereby grants to you, and you accept, a limited, personal, nonexclusive, nontransferable and revocable license to use the Service only as authorized in this Agreement. Your access to the Service is licensed, not sold. All references to the Service includes all related content, such as music, text, graphics, user interfaces, scripts and software used to implement and provide access to the Service, and any updates, upgrades, enhancements, modifications, revisions or additions to the Service made available to end users by Samsung. However, Samsung is under no obligation to provide any updates, upgrades, enhancements, modifications, revisions or additions to the Service.
(i) You may not reverse engineer, copy, decompile, disassemble, derive the source code of, modify, adapt, capture, reproduce, publicly display, publicly perform, transfer, sell, license, create derivative works from or based upon, republish, upload, edit, post, transmit, distribute, broadcast exploit, circumvent or otherwise translate (or encourage or assist any other person to do any of the foregoing) the Service or its content in whole or in part. You may not transmit, distribute, or broadcast any content included or accessible from the Service without our prior written consent unless we make the content available for distribution through a function on our Service, such as a social media plugin.
(ii) You may not use the Service for any purpose that is unlawful or prohibited by this Agreement. You are specifically prohibited from using the Service to share, publish or otherwise include content that (a) violates any third party’s rights, including privacy and intellectual property rights; (b) is obscene, abusive, threatening, defamatory, violent, illegal, hateful, discriminatory, racist, sexist, or otherwise objectionable (as determined in our sole discretion) or in non-conformance with Samsung’s content or use guidelines; or (c) contains viruses or other harmful software, code or other means that impact or limit the Service or the devices running the Service.
(iii) You may not interfere or attempt to interfere with the operation or use of the Service by others in any way through any means or device, including but not limited to spamming, hacking, uploading computer viruses or time bombs, or any other means. You may not, using the Service, collect or harvest personal information, including but not limited to account names and contact information. You may not impersonate or pretend to be anyone else but you, including without limitation, by creating fraudulent or spoof accounts, or using someone else’s image without their consent.
(iv) You may not use any robot, spider, script, or any manual or automated program or other means to extract, download, index, create multiple accounts, frame, enclose, mine, scrape, reproduce, or circumvent the presentation, operation, or intended use of any feature, function, or part of the Service.
(v) You may not use the Service to make any unsolicited offers, request, advertisements, or spam.
(vi) If the Service permits you to post pictures, you may not submit, share, or post pictures that are (a) not yours or pictures that you do not otherwise have the right to post (i.e., pictures that you find on the Internet or photos of or including another individual who has not consented to you posting it); (b) pornographic, nude, partially nude or sexually suggestive pictures; (c) pictures depicting illegal conduct or activities; or (d) pictures that include any person other than yourself unless you have secured all necessary rights and licenses to do so, and in no circumstance, submit a picture including any other person under 13 years of age.
(vii) If the Service allows you to submit reviews, you may not submit any fake or fabricated reviews. Any reviews by you will be genuine and will represent your own personal experiences. You warrant that you have not been offered any payment or other incentive to write a review.
(viii) The ability to download or stream contents from the Service may be available to you only in your resident country and not available in any other location. If subject to such territorial restrictions, either imposed by Samsung or content provider, you agree not to access or use or attempt to access or use the Service from outside of your resident country. Samsung may use technologies to verify such compliance.
2. INTELLECTUAL PROPERTY, LICENSES
2.1 Ownership. You acknowledge that the Service is proprietary to Samsung and its licensors, and protected under applicable copyright, patent, trademark and trade secret laws. You further acknowledge and agree that, as between you and Samsung, Samsung owns and shall continue to own all right, title and interest in and to the Service, including associated intellectual property rights under the above referenced applicable laws. This Agreement does not grant you any ownership interest in or to the Service, but only a limited license to use that is revocable in accordance with the terms of this Agreement. Notwithstanding the foregoing, if the Service provides you with the ability to post or submit content, we do not claim ownership of any content that you post or submit on the Service. You represent and warrant that you have secured (and are able to produce proof in writing) of any and all rights necessary and appropriate to submit the content on the Service, including all necessary releases. You do however grant us a perpetual, worldwide, unrestricted, non-exclusive, royalty-free, transferable license to use the content that you post or submit on the Service.
2.2 Right To Modify, Suspend or Discontinue Service. Samsung reserves the right to change the Service without notice. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, Samsung and its licensors reserve the right to modify, suspend, remove or disable your access to the Service or content, or discontinue the Service, in whole or in part, at any time without notice for any reason, and in no event shall Samsung be liable for any claims, costs or damages caused by or arising out of such actions.
2.3 Right to Monitor. We may, but have no obligation to monitor your use of the Service, your accounts, content, and communications that we determine in our sole discretion violates this Agreement. Samsung reserves the right to gather data on Service usage including license key numbers, and other information deemed relevant, to ensure that the Service is being used in accordance with this Agreement. Any unauthorized use shall be considered by Samsung to be a violation of this Agreement. Samsung reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized keys or access to the Service to the credit card or wireless carrier account used to make the original, authorized purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and may result in immediate termination of your right to use the Service. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.
2.4 Third Party Content. The Service includes software or other content licensed or distributed by third parties such as our music content licensors, and/or other third parties who license content and/or other services to us. Our agreements with these third parties may require Samsung to black-out and restrict the availability of and your access to certain content or services for periods of time. You agree that any third party that provides Samsung with such materials like our music content for distribution via the Service is hereby deemed an intended third party beneficiary of this Agreement and shall have the right to enforce any and all obligations of users of the Service under this Agreement to the same extent as if the third party provider were a party to this Agreement and in every respect, at law or in equity.
3. USE; CONTENT; INFORMATION
3.1 Use. Use of the Service will require your devices to have access or connection via mobile network or Internet (fees may apply), and may require updates or upgrades from time to time. You agree that Samsung may automatically download and install updates onto your device from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to use the Service may be affected by the reliability and performance of such system requirements. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. You also acknowledge that the Service will not be available in all countries or on all devices, and may be subject to restrictions imposed by your network carrier or Internet provider. You are solely responsible for any charges incurred from your network provider related to the use of the Service.
3.2 Third Party Services. Use of the Service may include or link to services provided by a third party service provider (“Third Party Services”). Your use of Third Party Services shall be solely between you and the third party, and subject to the applicable terms and conditions from such third party. Samsung hereby disclaims all responsibility and liability for your use of Third Party Services, including but not limited to the reliability or the performance of Third Party Services.
3.3 Objectionable Content. You understand that by using the Service, you (or other users who access the Service under your account) may encounter content that may be offensive, indecent, explicit, adult-oriented, or objectionable. You agree to use the Service at your sole risk and that Samsung shall have no liability to you for content (e.g., music lyrics) that may be offensive, indecent, explicit, adult-oriented, or objectionable.
3.5 Voice and Video Communications. We may make voice and video communication available to you as part of the Service, subject to your network carrier’s restrictions as may be applicable. Such additional voice and/or video communication functionalities do not purport to be a replacement for your ordinary mobile or fixed-line telephone services. In particular, you acknowledge and agree that such voice and/or video communication functionalities do not allow you to make emergency calls to any emergency services.
3.6 Infringing Content. It is our policy to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. If you are a copyright owner or an agent thereof and believe that any posting or other content on the Service infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed;
• Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
• Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and email address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Copyright Agent for notice of claims of copyright infringement can be reached at:
Steve Merlis, Senior Counsel - Federal Affairs
Samsung Telecommunications America, LLC
1200 New Hampshire Ave., N.W.
Washington, DC, 20036
3.7 No Endorsement or Verification of Content. We do not endorse, promote, support, verify, or monitor any content submitted to the Service, or any opinion, recommendation, action, or advice provided in such content. Content types (e.g., genres, sub-genres, categories and sub-categories) and descriptions, if provided, are provided for convenience purposes only, and you acknowledge and agree that Samsung does not guarantee their accuracy. We reserve the right to remove content without prior notice and for any reason in our sole discretion.
4. TERM; TERMINATION
4.1 Effective Date. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing or otherwise using the Service. The Service has no predetermined termination date and may continue until such time as Samsung decides to terminate the Service or when this Agreement is terminated consistent with the terms herein.
4.2 Termination by Samsung. If you fail, or Samsung reasonably suspects that you have failed to comply with any of the provisions of this Agreement, without limiting Samsung’s other rights and remedies, all of which are expressly reserved, at its sole discretion and without notice to you, Samsung may immediately discontinue your access to the Service and terminate this Agreement.
5. FEES; SUBSCRIPTIONS; AUTOMATIC RENEWALS
5.2 Subscription Charges. By purchasing a subscription, you warrant that you are the authorized purchaser and that the billing information provided is accurate. Samsung will not issue refunds based upon inaccuracies represented by you. By approving the purchase of the right to use the content or services, you authorize Samsung or its partners and affiliates to charge you for the purchase (including taxes and other applicable fees), and you expressly agree that Samsung may charge such purchase prices to your credit card, wireless carrier account or other payment processor as applicable as they are incurred. You are responsible for the timely payment of all fees and costs and for providing Samsung with valid payment account details for payment of all fees and costs. All charges will be billed to the account you designate during the registration process. If you want to designate a different account or if there is a change in your account status, you must accurately update your payment account information. Samsung reserves the right to change prices for the Service at any time, and does not provide price protection or refunds in the event of a price drop or promotional offering.
5.3 Automatic Renewal. Subscriptions are automatically renewed at the end of each subscription term. Such renewal will be for a monthly subscription term. You may cancel the auto renewal option at any point, which means your subscription will not renew at the end of the current term. However, canceling an auto renewal option will not refund subscription payments, and previously charged subscription fees cannot be prorated based on cancellation date. If your subscription is cancelled and you decide to re-subscribe, you will be charged at the then current subscription rate.
5.4 Free Trials. From time to time Samsung may offer free trials and other promotional trials. Any trial promotion must be used within the specified time of the trial. If you cancel a subscription during the corresponding free trial period, you will not be charged. After the free trial period, a subscription fee will be automatically charged. Samsung reserves the right to prohibit the combination of free trials, promotions, and other offers.
You will indemnify, release and hold harmless Samsung, its parent, subsidiaries and affiliates, and all officers, directors, agents and employees thereof, and any party acting on Samsung’s behalf, from and against any and all third party claims, actions, liabilities, losses, damages, judgments, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”) arising out of (i) any use of the Service by you or by any person that you allow to use the Service that is not in accordance to the terms of this Agreement, (ii) any breach of this Agreement by you or by any person that you allow to use the Service or (iii) any violation of any laws, regulations or the rights of any third party by you or by any person that you allow to use the Service.
6.1 Disclaimer of Warranties. THE SERVICE IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. SAMSUNG AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, AND SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
WITHOUT LIMITING THE PREVIOUS DISCLAIMER, SAMSUNG AND ITS LICENSORS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SERVICE OR THE CONTENT THEREIN WILL (i) OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS (iii) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO YOU OR THE INFORMATION YOU PROVIDED) FROM UNAUTHORIZED ACCESS OR (iv) WILL BE ACCURATE, COMPLETE, OR RELIABLE, THAT THE QUALIFY OF THE SERVICE WILL BE SATISFACTORY TO YOU, OR THAT ERRORS WILL BE CORRECTED.
6.2 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SAMSUNG OR ITS LICENSOR BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT LIABILITY, INFRINGEMENT OR ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS MEANS THAT YOU HEREBY WAIVE ANY AND ALL RIGHTS TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS FROM SAMSUNG AND ITS LICENSORS. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT SAMSUNG WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. WE SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, BREACH OF SECURITY ASSOCIATED WITH THE SERVICE, OR FOR ANY CONTENT, VIDEO OR COMMUNICATIONS ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF THE SAME, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM. SHOULD YOU CHOOSE TO COMMUNICATE OR MEET DIRECTLY WITH OTHER USERS OF THE SERVICE, WE ARE NOT RESPONSIBLE FOR THOSE COMMUNICATIONS OR ANY MEETINGS THAT MAY TAKE PLACE BETWEEN YOU AND OTHER USERS. IF YOU HAVE A DISPUTE WITH US OR ARE DISSATISFIED WITH THE SERVICE, TERMINATION OF YOUR USE OF THE SERVICE IS YOUR SOLE REMEDY. WE HAVE NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU.
8. GENERAL TERMS
8.1 Choice of Law. This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of New York, without regard to its conflict or choice of law principles.
8.2 Arbitration. By using the Service, you unconditionally consent and agree that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) you may have against any Samsung entity, the officers, directors, agents and employees of any Samsung entity (the “Samsung Entity(ies)”) arising out of, relating to, or connected in any way with the Service or the determination of the scope or applicability of this clause, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (ii) this clause is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (iii) the arbitration shall be held in New York City, New York; (iv) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any other agreements referenced herein that you have agreed to in connection with the Service; (v) the arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (vi) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Samsung Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and you will not file or participate in a class action against us; (vii) the arbitrator shall not have the power to award punitive damages against you or any Samsung Entity; (viii) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Samsung Entity exceed One Hundred Twenty-Five US Dollars (US$125), and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Samsung agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Samsung will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive; and (ix) with the exception of subsection (vi) above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subsection (vi) above is found to be invalid, unenforceable or illegal, the entirety of this arbitration provision shall be null and void, and neither you nor Samsung shall be entitled to arbitrate the dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
8.3 Severability. If any term or provision of this Agreement is held to be void or unenforceable by any judicial or administrative authority, such determination shall not affect the validity of enforceability of the remaining terms and provisions of this Agreement. The remaining provisions of this Agreement shall remain in effect and shall be construed in accordance with its terms.
8.4 Survival. Sections 1.2, 2, 5, 6 and 8 of this Agreement, and any other provision that by its nature should continue to be in effect, shall survive the expiration or earlier termination of this Agreement, and shall remain valid and binding.
8.5 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.6 No Waiver. The failure of Samsung to enforce at any time any of the provisions of this Agreement, or the failure by Samsung to require at any time performance by you of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Samsung to enforce such provision thereafter. The express waiver by Samsung of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.