END USER LICENCE AGREEMENT AND TERMS OF USE

 

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTROLS THE WAY YOU CAN AND MUST NOT USE OUR WEBSITE AND MOBILE DEVICE SOFTWARE APPLICATION STREAMHEAR THE AGREEMENT ALSO DESCRIBES THE PROMISES YOU MAKE TO US ABOUT YOUR USE OF STREAMHEAR.  AMONG OTHER THINGS, THE AGREEMENT SETS OUT LIMITATIONS OF LIABILITY AND THE WAY YOU OR WE CAN TERMINATE THIS AGREEMENT.

 

ACCEPTANCE OF THE TERMS OF USE

 

This agreement sets out the terms upon which you and LocalCorp Pty Ltd (ACN 610 022 092) (with its officers, employees, agents, licensees and assigns we our or us) agree that you can use the Streamhear application and website (Streamhear) This agreement incorporates, by reference, the Apple App Store Terms of Service and any other terms of use which apply to any services or devices that you use to access, download, operate and use Streamhear (for example, but without limitation, those of your internet service provider, your telephone services provider, or Apple’s terms of service for its Mobile Maps Service).

 

By accessing or using Streamhear, you are agreeing to the following terms as well as being bound by our Privacy Policy [LINK] If you do not agree to these terms, do not use Streamhear. This agreement applies to all visitors, users and others who access Streamhear (you or Users). This agreement also governs any updates, upgrades and new and amended versions of Streamhear, unless such versions are accompanied by new terms for use, which will govern those versions.

 

CHANGES TO THE TERMS OF USE

 

We may update this agreement from time to time. Amendments to this agreement will be effective from the date that the revised agreement is made available on this page. You are responsible for checking the terms of this agreement each time you access and use Streamhear.

 

USE OF THE SERVICE

 

You can only use Streamhear if you are eighteen (18) years of age or older. If you are eligible, we grant you a non-exclusive, limited, personal, non-commercial, revocable, non-transferable and non-sublicensable licence to use and access Streamhear on the terms set out in this agreement. All rights not expressly granted to you under this agreement are reserved.

 

SERVICE RULES

 

Your registration as a User gives you access to the services and functionality of Streamhear that we establish and maintain from time to time and at our sole discretion. Any new features that may be added to Streamhear, including the release of new Streamhear services or software, are subject to this agreement.

 

You agree to accept responsibility for all activities that occur under your User account or password (if any) and agree that you will not sell, transfer or assign your User account. You are responsible for maintaining the confidentiality of your password (if any) and for restricting access to your computer or mobile device.

 

We may, without any prior notice, change or cease providing Streamhear, add, change, remove, suspend or discontinue any feature or service, create usage limits, impose other limits on or restrict access to certain features, suspend, restrict or deny your access or permanently remove you from Streamhear, and without notice and without liability of any kind.

 

We may review every User account and assess the use of space and bandwidth, as well as apply restrictions or fees to those accounts, at our sole discretion.

 

YOUR USER CONTENT

 

Some areas of Streamhear allow Users to post and make available content such as profile information, location, comments, descriptions, tags, photos, information about music, audio (sound recordings) and more. Any such materials that you make available to Streamhear is referred to as User Content. You retain ownership of and sole responsibility for your User Content, subject to the licence granted in this agreement. Under no circumstances will we be liable in relation to any of your User Content that you make available through Streamhear.

 

Where your User Content contains music, you represent and warrant that you are the owner of all copyright or licences necessary to allow you to upload that User Content, including without limitation the performance, mechanical and reproduction rights with respect to each and every musical composition (including lyrics) and sound recording uploaded as User Content. You also represent and warrant that you have the authority to grant the licence below and that no agreement of any kind previously entered into by you interferes in any manner with the licence you grant us below.

 

You represent and warrant that Streamhear’s use of your User Content will therefore not violate any law or infringe upon the rights of third parties, including but not limited to their intellectual property rights, confidentiality rights, privacy rights and rights of publicity.

 

You are responsible for payment of any and all of the following:

  • all fees, income, monies, royalties or any other compensation payable to copyright owners, producers, and performers whose performance is embodied in any sound recording that is included in your User Content;
  • all publishing, communication and reproduction royalties payable to copyright owners of musical compositions that are included in your User Content; and
  • any other fees, monies, royalties or compensation payable to copyright owners whose artwork, metadata, trademarks and logos that are included in your User Content.

Except for User Content, Streamhear and all its materials within the website or mobile application device including but without limitation to software, images, logos, text, graphics, and all intellectual property rights for these materials, remain the exclusive property of Streamhear.

 

LICENCE OF YOUR USER CONTENT

 

You grant Streamhear a non­exclusive, perpetual, irrevocable, royalty free, transferable and sub-licensable, worldwide licence to use, reproduce, adapt, edit, modify, publish, distribute, exhibit, archive and communicate to the public all your User Content including your voice, name or likeness (or that of anyone else), location, and the musical compositions and sound recordings contained in your User Content, in any form and in any media or technology now known or yet to be invented and subject only to the prior rights of any copyright collecting society or performance rights organisation (such as BMI, ASCAP, PRS for Music or APRA) of which you are a member. You also grant each User of Streamhear a licence to view and access your User Content as permitted by the functionality of Streamhear.

 

If you delete your User Content, Streamhear may retain server copies of such User Content after deletion or removal.

 

UNAUTHORIZED ACTIVITIES

 

You must not, nor attempt to, copy, reproduce, re-sell, redistribute, adapt, vary, decompile, reverse engineer or modify Streamhear or any part of it.  Nor may you seek to derive its source code (except where you are expressly permitted by us in writing to do so, or to the extent that the terms of use for the open source component of Streamhear expressly forbid such an injunction in relation to that component).

 

You must not, in using Streamhear:

  • use any device, software or routine to interfere or attempt to interfere with or compromise the system integrity or security or intercept and decipher any transmissions to and from the server;
  • collect or harvest any personally identifiable information from Streamhear including but not limited to account names, keystrokes or usage data, or otherwise use or attempt to use another User’s account or password except with their express permission;
  • upload invalid data including but not limited to viruses, worms, malware or other software agents through Streamhear;
  • impersonate anyone, or misrepresent your association with another a person or entity;
  • encourage, promote, solicit or commit conduct that would constitute a criminal offence, give rise to a civil liability or otherwise violate any law;
  • post User Content that may create a risk or harm others through mental injury or emotional distress;
  • expose Users to imagery, audio or text that is inappropriate (as we may determine), including but not limited to content that contains acts of violence or nudity; sexual content; unlawful content; material that threatens, harasses or bullies other users, or which includes abusive; racially or ethnically offensive content; defamatory content; humiliating content; content which is invasive of personal privacy; profanity; or material which promotes hatred toward groups of people based on their race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity;
  • undertake any commercial purpose or activity through Streamhear without our express written permission, including without limitation uploading your own or a third party’s advertising, branding or promotional content;post User Content that contains information, imagery or audio that you do not have a right to make available or to upload;
  • harass, abuse, stalk, intimidate or threaten other Users;
  • manipulate, change or otherwise alter, reproduce, adapt or publish any other User’s User Content which you may access or obtain through Streamhear; or
  • copy or ‘rip’ any content (including audio or audio-visual content) which you may access or obtain from Streamhear or otherwise infringe the intellectual property rights of third parties, including Users

 

You indemnify us against any liability, loss, claim, damage, costs or expense suffered or incurred by us arising from or in connection with any breach by you of the warranties or other terms of this agreement.

 

We can, in our sole discretion, terminate your account, suspend your access to Streamhear or take such other action as we see fit against you if you carry out any unauthorized activity described in this agreement or otherwise breach this agreement.

 

THIRD PARTY MATERIAL

 

We may make available via Streamhear content, data, information, applications, services, websites and materials from third parties, including User Content and advertising material (Third Party Material).

 

We do not make any representation or warranty about, nor do we evaluate, examine or endorse Third Party Material, whether for relevance, usefulness for purpose, accuracy, currency, completeness, legal compliance, availability or otherwise. You use, access and rely on Third Party Material entirely at your own risk.  We may (but are not obliged to) remove, suspend access to, change or otherwise deal with Third Party Material at any time, for any period and to any extent, without notice to you and without any liability or obligation to you (and any owner or controller of any Third Party Material may do the same).

 

In using and accessing Streamhear:

  • you understand that you may be exposed to Third Party Material that is inaccurate or inappropriate and agree that Streamhear will not be liable for any damages alleged to occur as a result of such Third Party Material; and
  • you expressly permit us to incorporating advertising into the Third Party Material that you receive.

THIRD PARTY DEVICES, USE OF DATA AND RISK

 

Streamhear is designed to provide additional functionality and compatibility with certain third party devices. We are not responsible in any way for any personal injury, property damage or any other issue that might arise from using any third party device with Streamhear.

 

Use of Streamhear is entirely at your own risk. For example, location data is provided via Streamhear only for general and basic location-fixing purposes: it cannot be relied upon where a precise location is required or where incorrect location data may be undesirable to you or may result in danger, damage, injury, sickness, death or liability for regulatory non-compliance, trespass or other breach of any law, by-law or regulation.

 

We cannot guarantee that unauthorised third parties will not be able to overcome our security measures or use your personal information. You provide personal information at your own risk. Please refer to our Privacy Policy for more information.

 

PRIVACY

 

Subject to our Privacy Policy [LINK], as long as we do not disclose your personal identity in doing so, we can collect, copy, communicate, adapt and exploit data from your use of Streamhear (and, for the avoidance of doubt, associated Third Party Material) and associated devices, systems, software and peripherals, in order to improve our products and the delivery of our services to you and to comply with Apple’s App Store terms of service.

 

LIMITATION OF LIABILITY

 

You acknowledge that third parties have licensed and will license certain components of Streamhear to us.  Accordingly to the extent permitted by law, including the Australian Consumer Law (the ACL), we exclude all warranties in relation to Streamhear other than those expressly contained in this agreement. For example, we do not make any warranties that Streamhear will be error-free, constantly available or bug-free.

 

To the extent permitted by law, we (including our agents, employees or contractors) expressly exclude any liability for indirect, incidental, special, exemplary, or consequential damages whatsoever, whether arising in contract, tort (including negligence) or otherwise arising from your access to or use of Streamhear.

 

Notwithstanding anything else in this agreement, if any of the exclusions or limitations set out above are declared illegal or void, then to the extent permitted by law, our liability for breach of a condition or warranty implied into this agreement by the ACL (or otherwise) and your exclusive remedy is limited, at our discretion, to resupplying the Streamhear services or paying the cost of having the services resupplied.

 

Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by statute or regulation if it cannot lawfully be excluded, restricted or modified.

 

TERMINATION

 

The licence granted to you under this agreement continues until it is terminated. You can terminate it by deleting and uninstalling Streamhear from all devices in your possession, power or control. We can terminate it at any time. The licence will also terminate immediately and automatically if you do not comply with the terms of this agreement.

 

Termination of this agreement is without prejudice to the rights of either party that accrued prior to termination, nor to any provision of this agreement which, by its terms, is intended to survive the termination of this agreement.

 

On termination of this agreement, you must immediately cease accessing and using Streamhear.

 

INDEMNITY

 

You indemnify us and will hold us (and our agents, employees and contractors) harmless for any and all claims, damage, liability, costs and expenses (including legal fees on a solicitor client basis) that we may suffer or incur as a result of your failure to comply with this agreement, or from your use of or access to Streamhear.

 

GOVERNING LAW

 

Streamhear is controlled and operated from Australia and we make no representations that Streamhear is appropriate, functional or available for other locations. Those who access Streamhear from other jurisdictions do so at their own risk. This agreement is governed by the laws in force in the state of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of that state and courts competent to hear appeals from those courts.

 

ENTIRE AGREEMENT

 

This Agreement along with our Privacy Policy constitutes the entire agreement between you and us.

 

SEVERABILITY

 

If any provision of this Agreement is held to be invalid or unenforceable for any reason, it will be severed in the relevant jurisdiction. The remaining provisions of this Agreement will remain in force.

 

GENERAL

 

In this agreement (except to the extent that the context otherwise requires) words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and trusts and vice versa; a reference to a document or agreement includes a reference to that document or agreement as changed, novated or replaced from time to time; a reference to a party includes a reference to that party’s successors and assigns; and words and phrases defined in the Copyright Act 1968 (Cth) have the same meaning in this agreement.