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TERMS OF USE


These Terms of Use are current as of March 1st 2022.
Please read these terms and conditions carefully.

1. YOUR ACCEPTANCE OF THESE TERMS OF USE

1.1 These Terms of Use, together with our Policies, constitute a binding agreement (the “Agreement”) between BEATSURFING and all parties (“Users”, “you”) who use or access the BEATSURFING website, any BEATSURFING mobile and desktop app, and any related players, widgets, tools, applications, data, software, APIs and platforms (collectively, the “Services”), regardless of whether you have registered a BEATSURFING account (“Account”). 

1.2 Our Policies include:

1.2.1 Privacy Policy
1.2.2 Cookies Policy

In addition, certain features of the Services may have additional terms that apply when you use those features. In particular, BEATSURFING’s “Marketplace” service (the “Marketplace Service”) is subject to the terms and conditions set forth in Section 7 below and BEATSURFING’s “Sounds” service (the “Sounds Service”) is subject to the terms and conditions set forth in Section 7A below. If you use the Marketplace Service, please read Section 7 carefully to ensure you understand your rights and obligations when you use the Marketplace Service. If you use the Sounds Service, please read Section 7A carefully to ensure you understand your rights and obligations when you use the Sounds Service.

1.3 The use of the Services implies the Customer’s adherence to the Agreement. By accessing, visiting or using the Services, you agree to be bound by the Agreement.

We may, in our sole discretion, modify or revise the terms of the Agreement at any time. If we make changes, we will notify you by posting an announcement on our Site or sending you an email. Users are bound by any changes when he or she uses or otherwise accesses BEATSURFING after such changes have been first posted. It is your responsibility to check this page from time to time for updates. 

2. DEFINITIONS

We use some capitalized terms within these Terms of Use, these capitalized terms have specific meanings defined in the present section. 

2.1 Unless the context otherwise requires, the following expressions shall have the following meanings in these Terms of Use:

2.1.1 “Agreement” means these Terms of Use together with the Supplemental Agreements.
2.1.2 “Artist” means a User who contributes Musical Works to the Sounds Service.
2.1.3 “BEATSURFING”, “we”, “our” and “us” refer to Druw Audio srl, a company incorporated under the laws of Belgium, with registered office at Rue Jardon, 31, 4800 Verviers and registered with the Crossroads Bank of Entreprises under number (BE)0754803223.
2.1.4 “Content” means any materials, data, information, functionalities or services displayed, provided or made available by BEATSURFING through the Services, including but not limited to text, software, code, scripts, webpages, Instruments, sound, samples, photographs, video, graphics, graphical user interface, forms, diagrams or other material contained in the Services.
2.1.5 “Your Content” means any materials, data, information produced by the User while using the Services, including but not limited to Maps.
2.1.6 “External Services” means websites, applications and/or platforms which are owned and/or operated by Third Parties (including Linked Services), and information located on the Internet.
2.1.7 « Force Majeure » : Any delay, failure to perform, damage, loss or destruction, or malfunction of the Service, or any consequence thereof, caused or occasioned by, or due to, an event of Force Majeure, fire, earthquake, power failure, explosion, civil disturbance, governmental or regulatory action, lack of equipment or materials, unavailability of transportation, acts or omissions of third parties (except subcontractors), epidemic and lockdown, or any other cause beyond the reasonable control of BEATSURFING and which cannot be overcome by the adoption of reasonable measures.
2.1.8 “ Indemnified Party” means BEATSURFING, its Related Entities, and their respective officers, directors, employees, agents, independent contractors, shareholders, successors and assigns.
2.1.9 « Indirect Damages » : the direct consequences of direct damages and include, but are not limited to, any financial or commercial loss, any commercial disturbance, any increase in costs and other overheads, loss of profit, loss of brand image, any postponement or disruption in project or business planning, loss of data and its consequences, …
2.1.10 “Intellectual Property Rights” means all copyright, patents, utility innovations, trademarks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
2.1.11 “Linked Services” means External Services to which Content can be submitted through the functionalities of the Services.
2.1.12 “Musical Works” means sound recordings (“Sound Recordings”), Instrument creation, and the musical works embodied within Sounds Services.
2.1.13 “Party” refers to any of the Parties to the Agreement.
2.1.14 “Parties” refers to the Parties to this Agreement.
2.1.15 “Personal Data” means, as provided for by GDPR, any data about you from which you can be identified, either (a) from that data; or (b) from that data and other information to which we have or are likely to have access, including data in our records. Examples of such Personal Data include but are not limited to your name, telephone number(s), postal/mailing address and email address.
2.1.16 “Policies” means our Privacy Policy, Community Guidelines, Cookies Policy, and other terms that apply to specific functionalities, apps, products or services within the Service.
2.1.17 “Related Entities” means any holding company of BEATSURFING, subsidiary of BEATSURFING, or subsidiary of the holding company of BEATSURFING.
2.1.18 “Services” means the BEATSURFING websites, any BEATSURFING mobile and desktop app, and any related players, widgets, tools, applications, data, software, APIs and platforms.
2.1.19 “Sound” or “Samples” or “Instrument”: Sounds assets that Users can download on the Sound service functionality of the App.
2.1.20 “Sound Service” is the name given for both “BEATSURFING CATALOG” & “BEATSURFING STORE”: The functionality of the App providing a library of Instrument and sound samples that Users can download and use to configure their maps and create music.
2.1.21 “Submit” means, in relation to Content, uploading, creating, storing, transmitting, submitting, exchanging, communicating, or otherwise making available Content on or through the Services.
2.1.22 “Third Party” means a legal entity, company or person(s) that is not a party to these Terms of Use.
2.1.23 “User” means any party with access to the Services and/or who uses the Services.

2.2 Interpretation

2.2.1 In the Terms of Use: (i) whenever the words “include”, “includes” or “including” are used in these Terms of Use, they will be deemed to be followed by the words “without limitation”; (ii) words importing the singular only shall also include the plural and vice versa where the context requires and references to persons include bodies incorporate or unincorporated, including partnerships and their successors and assigns; (iii) unless expressly indicated otherwise, all references to a number of days mean calendar days, and the words “month” or “monthly” as well as all references to a number of months means calendar months; (iv) clause and paragraph headings are inserted for convenience only and shall not affect the interpretation of the Terms of Use; and (v) references to a statute, law, by-law, regulation, rule, directive, delegated legislation or order also refers to the same as amended, modified or replaced from time and to any by-law, regulation, rule, directive, delegated legislation or order made thereunder.
2.2.2 To the extent that there is any conflict between the Terms of Use and any Policy associated with a particular functionality, app, product, or service, the relevant Policy will govern with respect to your use of such functionality, app, product or service to the extent of the conflict.

3. YOUR BEATSURFING ACCOUNT

3.1 You can access limited features of the Service without creating an Account (“Free Users”). Certain features and portions of the Services are only available or accessible to Users who have registered an Account (“Registered Users”). Certain features and portions of the Services are only available or accessible to Users who have unlocked (“Unlocked Users”).

3.2 The User declares and guarantees that he has the legal capacity to contract and, if he represents a company or any other organization with legal personality, that he is authorized to act in the name and on behalf of this company or organization.If you are using or opening an account on behalf of a company, entity or organization (including, but not limited to, a recording label) (each an “Artist Representative”), then you represent and warrant that you: (i) are an authorized representative of that Artist Representative and any Artists represented by the applicable Artist Representative with the authority to bind the applicable Artist to these Terms of Use and (ii) agree to be bound by these Terms of Use on behalf of the applicable Artist.

3.3 The User is responsible for the security and confidentiality of his Accounts, his terminals, his passwords and his connection. Therefore, the User is responsible for all activities conducted from or through his Account.A user account is strictly personal and cannot be shared with a Third Party. When registering, the User must choose a username and password in order to access the Service. To ensure the confidentiality and security of the Service, the User must use his identifier and password in such a way as to preserve their strict confidentiality. In particular, the User must not disclose his or her user username and/or password to anyone.  Any use of the Service by means of these identifiers and password is deemed to have been made by the User himself. Any action taken under your login is your responsibility, whether or not such activity was authorised by you.

3.4 When you register an account, you will provide us with your email address, and will choose a username and password for your account. You must ensure that the email address that you provide is, and remains, valid. Your email address and any other information you choose to provide about yourself will be treated in accordance with our Privacy Policy.The User is the sole responsible for accuracy, completeness and appropriateness  of the information it submits. BEATSURFING will not be liable for any damages resulting from inaccuracies or omissions in the information provided by Users.

3.5 If your username and/or password is lost or stolen, or if you believe that your Account has been accessed by unauthorized Third Parties, you must notify us directly in writing, and should change your password at the earliest possible opportunity.

3.6 We reserve the right to disallow, cancel, remove or reassign certain usernames or permalinks related to BEATSURFING’s web pages in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your account and/or access to the Services if activities occur on your account which, in our sole discretion, would or might constitute a violation of the Agreement, or an infringement or violation of the rights, including the Intellectual Property Rights, of any Third Party, or of any applicable laws or regulations.

3.7 You may terminate your Account at any time as described in the Termination   section below.

3.8 If you use the Sound Service, you may have an opportunity to download Instruments. These downloads are subject to the terms and conditions applicable to the BEATSURFING CATALOG and the BEATSURFING STORE, as forth in Section 7 below.

4. PRICE, PAYMENT AND BILLING

4.1 We reserve the right to require payment of fees for certain additional features of the Services (Unlocked User). The Price is the one indicated on our Website. The applicable price is the one displayed on our website at the time of the purchase. Should you elect to unlock these features, you shall pay all applicable fees, as described on the Site in connection with the applicable features.

4.2 This unlocking is concluded for a period of 12 months. It won’t be renewed tacitly at the end of this period.At the end of the period, you will own the application with all features and instruments used during the unlocking period. To have access to the features and instruments coming after the end of the unlocking period, the user must unlock again the application for 12 months.

4.3 We reserve the right to change our price list and to institute new charges at any time.

4.4 When choosing to unlock the features and instruments for 12 months, the user pays the fee directly to the provider of the App Store which is Apple Inc (Terms and Conditions are available at : https://www.apple.com/befr/legal/internet-services/itunes/befr/terms.html.)

The security of electronic fund transfers and the proper execution of payment orders in general are the sole responsibility of the financial service provider used by the App store where you download the App : Apple’s App Store (Terms and Conditions regarding Payment are available at : https://www.apple.com/be-fr/shop/help/payments).

BEATSURFING cannot be held responsible for any damage whatsoever resulting from an error, omission, breakdown, malfunction or reprehensible act relating to these payment services which is not directly attributable to it. BEATSURING cannot be held responsible in case of fraudulent use of the means of payment or the resources made available to the User.

It is the Customer’s responsibility to take note of the general conditions and limitations of liability applicable to the payment services he uses.

5. USER GENERATED CONTENT

5.1 Ownership: You retain ownership of all Content that you create through use of the Services (“Your Content”). We do not claim any ownership rights over Your Content.We don’t store User Content. We act merely as a passive conduit and/or host for the uploading, creation, collaboration, storage and distribution of User Content.

5.2 Licence granted to us: Subject to Section 7 below with respect to Content contributed by Artists in connection with the Sounds Service. By creating Your Content through the Services, you hereby grant us a worldwide, non-exclusive, royalty-free, sub-licensable and transferable licence to communicate Your Content to the public, in connection with the Service and our (and our successors’ and Related Entities’) business, including the distribution of advertising or other promotional material through the Services. You also hereby grant to us the worldwide, non-exclusive, royalty-free, sublicensable, and transferable right to use, distribute, reproduce, copy, and display your trademarks, service marks, slogans, logos or similar proprietary rights (collectively, the “Trademarks”) solely in connection with the Services or in the marketing, promotion or advertising of the Services, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.

5.3 Termination of Licences: The above licences which you grant to us and to other Users, will terminate within a commercially reasonable and practicable time after you remove or delete Your Content from the Services or within a commercially reasonable and practicable time after you terminate your Account, except (a) the above licences will not terminate in respect of Content which you Share with others (including in a Band) and which they have not removed from the Services; and (b) the above licences granted by you in User comments you Submit are perpetual and irrevocable.

5.4 Linked Services: You hereby acknowledge and agree that once Your Content is distributed to a Linked Service, it is no longer under our control and we are 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 Linked Service deletes any item of Your Content from the Linked Service.

5.5 Ownership of others Users’ Content: Any Content made available on the Services, other than Your Content, remains the property of the relevant User, and may be subject to Intellectual Property Rights. You do not acquire ownership of another User’s Content, if you merely repost that Content, or include that Content in a playlist or station. You also do not acquire any rights or permission to use another User’s Content except as stated in this Agreement. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, adapted, synchronised, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except with the prior written consent of the relevant User. 

5.6 Prohibited Content: You must not Submit any Content which:

5.6.1 is unlawful, abusive, libellous, defamatory, pornographic or obscene, and you will not promote or incite harassment, violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation;
5.6.2 contains a Third Party’s Intellectual Property, unless you have permission from the rightful owner of the Content;
5.6.3 is contrary to the Agreement; and/or
5.6.4 that is contrary to applicable local, national, and international laws and regulations.

5.7 Representations and warranties: You hereby represent and warrant to us as follows:

5.7.1 your Content, and each and every part thereof, is an original work by you, or you have obtained all rights, licences, consents and permissions necessary in order to use your Content pursuant to these Terms of Use, including, without limitation, the right to upload, create, reproduce, store, transmit, distribute, share, publicly display, publicly perform, make available (including for access offline) and otherwise communicate to the public your Content, and each and every part thereof, on, through or via the Services and any Linked Services.
5.7.2 your Content and the availability thereof on the Services does not and will not infringe or violate the rights of any Third Party, including, without limitation, any Third Party Intellectual Property Rights.
5.7.3 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.

5.8 Right, but not obligation, to monitor content: While we have no obligation to and do not monitor, review or edit Content created by Users, we reserve the right to remove Content, suspend or terminate your access to the Services and/or pursue all legal remedies if we believe that any such Content breaches any of the foregoing representations or warranties, or otherwise infringes a Third Party’s rights, including Intellectual Property Rights, or violates any law, rule or regulation or violates the Agreement.

6. BEATSURFING’S INTELLECTUAL PROPERTY RIGHTS

6.1 The Services are proprietary to us and must not be used other than strictly in acceptance with this Agreement. When you agree to this Agreement, we grant you a personal, limited, non-exclusive, non-transferable, non-sublicensable right to use the Services.The provision of the Services shall therefore be construed as a non-exclusive, worldwide and onerous or free (depending on the status of the User as Free, Registered or unlocked) license to use – within the limits of normal and reasonable business use – the Services granted to Users.

6.2 You may not under any circumstances:

6.2.1 copy, sell, resell, assign, license, distribute, transmit, publicly display, rent, lease, lend, export, offer on a “pay-per-use” basis, publish or otherwise reproduce the Services or any part thereof in any form by any means;
6.2.2 adapt, modify, decompile, disassemble, localise, port and/or reverse engineer the Services or any part thereof;
6.2.3 remove, obscure or destroy any copyright, trade secret, proprietary or confidential legends or marking placed upon or contained within the Services;
6.2.4 use the Services for any purpose other than those permitted under this Agreement; or
6.2.5 remove, extract, download or copy any software, firmware, program and/or any code of any kind which have been embedded and/or incorporated into the hardware, devices and/or equipment comprised in any device used to access the Services.

6.3 This License is conditional upon the User’s compliance with the Agreement. This License does not imply any transfer of rights to the User.Any breach of the aforesaid restrictions shall result in immediate and automatic termination of all rights and licence granted hereunder. The use restrictions set out herein shall survive the termination of this Agreement.Any breach by the User of these obligations shall also automatically entail, and without prior notice, a fixed indemnity equivalent to 5.000 euros, without prejudice to the right of BEATSURFING to claim a higher indemnity that it can justify and without prejudice to the right of any injured third parties to institute proceedings independently of BEATSURFING.

6.4 As part of the Services, we may make available to you ready made Content to which we hold the Intellectual Property Rights. We do not grant you ownership over any such Content. We grant you a non-exclusive, revocable licence to make use of the BEATSURFING-generated Content only within the functionalities of the Services and in accordance with this Agreement.

6.5 All of our Intellectual Property Rights, including our trademarks and other features of the BEATSURFING brand, are our sole property. The licence which we grant you to use the Services, does not entitle you to use our Intellectual Property Rights or any other features of the BEATSURFING brand, whether for commercial or non-commercial purposes.

7. TERMS APPLICABLE TO THE SOUNDS SERVICES (THE BEATSURFING CATALOG & THE BEATSURFING STORE) 

If you elect to use the Sounds Services, the following terms and conditions will apply to your use of the BEATSURFING CATALOG and the BEATSURFING STORE:

7.1 Terms Applicable to Users: You may download instrument or sample through the Sounds Services (each, an “Instrument Download” or “Sample Download”).  Instruments or Samples that you download cannot be guaranteed to be available to you perpetually and you may lose access to Instruments or Samples you download through the Sounds Services. Users bear all risk with respect to downloads that you make through the Sounds Services. We encourage you to promptly download any Instrument or Sample through the Sounds Services to your own devices so that you will retain control and possession of the applicable Instrument or Sample even if we are required to remove the Instrument or the Sample from the Sounds Services.

7.2 Taxes: We may withhold any taxes, duties, charges or levies on payments that you make to the app in accordance with all applicable laws, rules and regulations. BEATSURFING will be responsible for remitting applicable taxes, duties, charges or levies to the appropriate tax authority.

7.3 BEATSURFING’s Right to manage the Sounds Services: BEATSURFING retains the right, but does not have the obligation, to immediately halt the offering or sale of any Instrument or Sample, prevent or restrict access to the Sounds Services or take any other appropriate measures as deemed necessary by BEATSURFING to protect our, Users’, Artists’ and Third Parties’ rights and property or to facilitate the proper functioning of the Sounds Services.

7.4 License to use: The sounds Services provides a library of sound samples (“Sounds”) and ready made Instruments (“Instruments”) for Users to create Content for personal or commercial purposes. Users who use the sounds Service are granted a worldwide, non-exclusive, royalty-free licence to (i) access, use, reproduce, adapt, synchronise and prepare derivative works of Sounds as part of Users’ Content; and (ii) to distribute, publicly display, publicly perform and make available.

7.5 Prohibition on use: Users are prohibited from (i) using, redistributing and reselling Sounds and/or Instruments as standalone or isolated samples; and (ii) using Sounds or Instruments in sampler presets, loop libraries, or sample packs distributed, sold, circulated or made available by BEATSURFING’s competitors, by Users or by any Third Party.

7.6 Intellectual Property: BEATSURFING or its sample provider own the Intellectual Property Rights in Sounds and Instruments. The licence which we grant you to use Sounds and Instruments and the sounds Service does not give you any rights, title or interest to Sounds other than the licence expressly provided in 7.4 above. You own the Intellectual Property Rights in all Content you create using the Sounds except that the Intellectual Property Rights in the Sounds and Instruments which form part of your Content still remains with BEATSURFING or its samples provider.

8. BEATSURFING’S LIMITATION OF RESPONSIBILITY AND LIABILITY

8.1 BEATSURFING is bound, as a general rule, by obligations of means.

8.2 Unless otherwise agreed, the information provided by BEATSURFING is general and informative.

8.3 BEATSURFING uses its best efforts to ensure the proper functioning and access to the Services 24 hours a day, 7 days a week.However, the User understands and accepts that the Services may be temporarily unavailable for technical reasons, including updates or maintenance.
The Services are provided as is, without warranty of any kind regarding technical bugs, deficiencies or lack of performance, incompatibilities of any kind. The User is also aware that such problem cannot be totally excluded. BEATSURFING disclaims any liability for any such inconvenience or damage attributable to Third Parties such as, but not limited to:

an absence, breakage or slowness of the internal connection or slowness of the server or other element of the IT infrastructure,
an external intrusion or the presence of computer viruses distributed via the Internet or by any other means, as well as any resulting consequences on the server or any other element of the computer infrastructure
an attempt to defraud by phishing (or any other technique),
a detour or theft of information or a computer crash,
a partial or total, temporary or permanent interruption of the Services due to a Third Party.

8.4 BEATSURFING is not responsible for monitoring Content: We are under no obligation to monitor or review Content created on or through the Services, and we assume no responsibility or liability arising from the Content or for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, inaccuracy or any other objectionable material Created with the Services or External Services. You hereby acknowledge and agree that we don’t store User Content; act merely as a passive conduit and/or host for the uploading, creation, collaboration, storage and distribution of User Content; play no active role and give no assistance in the presentation or use of User Content; do not monitor, review or edit User Content; and are not responsible for User Content and do not endorse any opinion contained in User Content.

8.5 No representations or warranties: The Services and the Content are provided on an “as is” and “as available” basis. You agree that your access to and use of the Services and Content shall be at your sole risk. No representations or warranties of any kind, implied, express or statutory, including the warranties of non-infringement of Third Party rights, title, merchantability, satisfactory quality or fitness for a particular purpose, and freedom from computer virus or other malicious, destructive or corrupting code, agent, program or macros, are given by BEATSURFING in connection with the Services. Without prejudice to the generality of the foregoing, we do not warrant:

8.5.1 the accuracy, timeliness, adequacy, commercial value or completeness of the Services or the Sounds, and expressly disclaim any liability for errors, delays or omissions in the Sounds, or liability for any action taken in reliance on the Content or the Services;
8.5.2 that your use of and/or access to Services or the Sounds, will be uninterrupted, timely, secure or free from errors or that any defects will be corrected;
8.5.3 that the Services and/or any Sounds will meet your requirements or are free from any virus or other malicious, destructive or corrupting code, agent, program or macros;
8.5.4 that any information, instructions or communications posted or transmitted by you through the Services is secure and cannot be accessed by unauthorised Third Parties;
8.5.5 that any elements of the Services designed to prevent unauthorised access or download of Sounds will be effective;
8.5.6 that access to and/or use of Sounds and/or the Services by you will not infringe the rights of any Third Parties, including Intellectual Property Rights; and
8.5.7 that your use of the Services is lawful in any particular jurisdiction.
8.5.8 that the material you use is compatible with BEATSURFING. We decline all responsibility in the event of inadequacy between the User’s computer installation (hardware, software, connection, etc.) and the Services. The User is responsible for obtaining adequate information regarding hardware and software compatibility before using the Services.

8.6 Limitation of Liability: The Indemnified Party shall not be liable to you for any loss, damages or expenses (including any direct, Indirect Damages, incidental, special, consequential or punitive Damages or economic loss or any claims for loss of profits or loss of use) whatsoever or howsoever caused (regardless of the form of action) arising directly or indirectly in connection with:

8.6.1 any access to and/or use of the Services, Content or External Services;
8.6.2 your inability to use and/or access the Services or any parts thereof, or to access any Content or any External Services through the Services;
8.63 your reliance on any Content or information relating to Content; or any inaccuracy or defect in any Content or any information relating to Content;
8.6.4 any errors or omissions in the Services’ technical operation, including but not limited to any delay or interruption in transmission, or any computer virus or other malicious, destructive or corrupting code, agent program or macros;
8.6.5 any changes that we may make to the Services or any part thereof, or any temporary or permanent suspension or cessation of access to the Services or any content in or from any or all territories;
8.6.6 any action taken against you by Third Parties with respect to any alleged infringement of such Third Party’s rights related to your Content or your access to and/or use of the Services and/or the Content;
8.6.7 any action taken as part of an investigation by us or any relevant law enforcement authority regarding your use of the Services and/or Content;
8.6.8 your failure to provide us with accurate or complete information, or your failure to keep your Username and/or Password suitably confidential;
8.6.9 any misconduct by other Users or Third Parties using the Services, especially in breach of the Agreement;
8.6.10 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;
8.6.11 any loss of profits, or any loss you suffer which is not a foreseeable consequence of us breaching the Agreement. Losses are foreseeable where they could be contemplated by you and us at the time you agree to the Agreement, and therefore do not include any indirect losses, such as loss of opportunity;
8.6.12 any non-performance, error, interruption or delay in the performance of our obligations under the Agreement (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Services’ contents if this is due, in whole or in part, directly or indirectly to an event of Force Majeure, and/or;
8.6.13 any inadequacy of the User’s computer hardware, data and software as well as his connection to the network allowing him to access the Services.

8.7 Indemnity: Save for losses arising directly from our fraud or willful default, you hereby agree to defend, indemnify and hold harmless the Indemnified Party s from and against any claims (actual and threatened), settlement sums, liability, losses, damages, costs (including solicitor and client costs and expenses (legal or otherwise), charges, expenses, actions, proceedings, whether foreseeable or not, which the Indemnified Party
may sustain, suffer or incur, directly or indirectly out of or in the course of or in connection with any of the following:

8.7.1 your access to and/or use of the Services or any part thereof;
8.7.2 any Content you Submit to and/or through the Services;
8.7.3 our having made available the Services and/or Content, or having entered into the Agreement with you;
8.7.4 any enforcement of our rights under the Agreement;
8.7.5 any violation by you of any terms of the Agreement, however arising;
8.7.6 any negligent act or omission, willful default, unlawful act, fraud, misrepresentation and/or misconduct on your part;
8.7.7 any claims for violation of any Third Party rights, including, without limitation any Intellectual Property Right or privacy right, arising from or in relation to your access to and/or use of the Services and/or your Content;
8.7 8 any claims arising from the provision of your Content on the Services, and/or your making available thereof to other Users of the Services, and/or the actual use of your Content by other Users of the Services or Linked Services in accordance with the Agreement of the Services;
8.7.9 any claims relating to the completeness, accuracy, currency or reliability of any information provided by Users; and/or
8.7.10 any activities related to your Account, be it by you or by any other person accessing your Account with or without your consent.

8.8 Nothing in these Terms of Use limits or excludes the liability of the Indemnified Party for (i) any death or personal injury caused by its or their negligence, or (ii) any losses arising directly from its or their fraud or willful default.

8.9 In any event, except for personal injury or death of the User due to an action or omission of BEATSURFING, the liability of BEATSURFING is limited to the limit of its liability insurance.

9. BLOCKING AND REMOVAL OF CONTENT

9.1 We reserve the right, but shall not be obliged to:

9.1.1 remove, block, reject or relocate any Content appearing on or through the Services at any time;
9.1.2 prevent or restrict access to the Services by any User or Third Party;
9.1.3 report any activity that we suspect to be in violation of any applicable law, statute or regulation to the appropriate authorities and to co-operate with such authorities;
9.1.4 request any information and data from you in connection with your use of the Services at any time, and exercise our rights under this paragraph if you refuse to divulge such information and/or data or if you provide or if we have reasonable grounds to suspect that you have provided inaccurate, misleading or fraudulent information and/or data; and/or
9.1.5 suspend or terminate your access to the Services, without warning, if we determine, in our sole discretion, that you have breached the Agreement, or if ordered to do so by a court, and/or in other appropriate circumstances, as determined by us at our sole discretion.

9.2 If you discover any Content on the Services that you believe infringes your copyright, please report this to us using any of the methods outlined on our Copyright Information pages.

9.3 If you discover any Content that you believe to be in violation of your other Intellectual Property Rights, or which you believe is defamatory, pornographic, obscene, racist or otherwise liable to cause widespread offense, or which constitutes impersonation, abuse, spam or otherwise violates the Agreement or applicable law, you may report this to us by email at support@beatsurfing.com.

10. MAINTENANCE

10.1 To the extent possible and desirable in light of the state of the art, BEATSURFING may adapt and improve the Services. Therefore, the User understands and accepts that the Services and, in general, all the functionalities offered by the Services may be subject to modification. Therefore, some features may be removed and others added, without the User being able to assert any right over any of them.

10.2 Whenever possible, BEATSURFING shall inform the User of the most important changes by e-mail or via a banner displayed on the User’s Account.

10.3 BEATSURFING does not, however, make any commitment with respect to Upgrade Maintenance and does not undertake to carry out such Upgrade Maintenance, nor to carry out such Maintenance with a view to customizing and/or adapting the Services to the User’s specific needs.

11. THIRD PARTY WEBSITES AND SERVICES

11.1 The Services may provide you with access (for example hyperlinks) to websites, applications and/or platforms which are owned and/or operated by Third Parties, including Linked Services, and/or information located on the Internet (collectively, “External Services”).

11.2 You acknowledge and agree that we do not have or maintain any control over External Services, and that we are not responsible for their content, operation or use, or the consequences of accessing any such External Services. You acknowledge and agree that, by linking or otherwise providing access to any External Services, we do not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, or information provided by such External Services.

11.3 External Services may have their own terms and conditions of use, and may have different practices and requirements to the Services provided by us. You are solely responsible for reviewing any terms of use or other terms governing your use of the External Services, which you use at your own risk. You acknowledge and agree that you are solely responsible for taking the precautions necessary to protect yourself 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.

12. CONSENT TO DISCLOSURE AND PROVISION OF INFORMATION, AND COOKIES

12.1 Privacy Policy: BEATSURFING is concerned with the protection of the privacy of its Users. The Privacy Policy, which is an integral part of the Agreement, has been drawn up in order to provide information on how we handle your personal data. Our Privacy Policy explains how we treat your Personal Data when you access and/or use the Services. By accessing and/or using the Services, you agree that we process the Personal Data you provide to us in accordance with our Privacy Policy (which may be found https://beatsurfing.com/privacy-policy/), as may be updated and/or amended by us from time to time.

12.2 Cookies: In addition, in common with most online platforms, we use cookies to help us understand how people are using the Services, so that we can continue to improve the service we offer. Our use of cookies, and how to disable cookies, is explained in our Cookies Policy.

13.MEETUPS

13.1 BEATSURFING has an active community of Users, many of whom may from time to time organize and attend face-to-face meetings at venues all over the world or meetings held remotely using video conferencing tools (“Meetups”). We do not sponsor, oversee or in any way control such Meetups.

13.2 You hereby acknowledge and agree that your attendance and participation in any Meetups is entirely at your own risk and we do not bear any responsibility or liability for the actions of any Users or any Third Parties who organise, attend or are otherwise involved in any Meetups.

14. COMPETITIONS AND OTHER PROMOTIONS

14.1 Other Users or Third Parties may promote competitions, promotions, prize draws and other similar opportunities on the Services (“Third Party Competitions”). We are not the sponsor or promoter of these Third Party Competitions, and do not bear any responsibility or liability for the actions or inactions of any Third Parties who organise, administer or are otherwise involved in any promotion of these Third Party Competitions.

14.2 If you wish to participate in any of these Third Party Competitions, it is your responsibility to read the terms and conditions applicable to the relevant Third Party Competition and to ensure that you understand the rules and any eligibility requirements, and are lawfully able to participate in such Third Party Competitions in your country of residence.

14.3 If you wish to run your own Third Party Competition on the Services, you are free to do so provided you comply with our Competition Terms, which will be available by emailing competition@beatsurfing.com

15. USE OF BEATSURFING APP AND WIDGET

15.1 The User shall use the Services in good faith, in compliance with the Agreement, the laws and good morals. Consequently, BEATSURFING declines all responsibility in the event of improper or contrary use of the Services.The Services include access to customisable Maps (“Maps”), and an embeddable version of the BEATSURFING Maps Creator, the Connector and the Player (“Widgets”) for incorporation into Users’ own sites, social media profiles and External Services, whether or not a Linked Service. This functionality is provided to enable Users to put their Content wherever they wish. In other words, the User’s content is on his or her own device which allows him or her to post it on other websites.

15.2 You may not, without our prior written consent, use the App and its Widgets in such a way that you aggregate Content from the Services into a separate destination that replicates substantially the offering of the Services, or comprises a content service of which Content from the Services forms a material part.

15.3 Similarly, you may not, without our prior written consent, use the Players or the Widgets to embed Content into any website or other destination dedicated to a particular artist or to a particular genre, except where the relevant Content is Your Content and you are the person or are authorised to represent the person to whom the site or destination is dedicated.

15.4 You may not use the Players or Widgets in any way that suggests that we or any artist, audio creator or other Third Party endorses or supports your website, or your use of the Players or Widget on such website or other destination.

15.5 The foregoing shall apply whether your use of the Players or Widgets is related to commercial or non-commercial purposes.

16. CHANGES TO SERVICES, CONTENT OR ACCOUNTS

16.1 We may, from time to time and without giving any reason or prior notice, upgrade, modify, suspend, discontinue or terminate the Services or any part thereof, temporarily or permanently, and in its entirety or with respect to individual territories only. We and our Related Entities shall not be liable if such upgrade, modification, suspension, discontinuation or termination prevents you from accessing any part of the Services.

16.2 You have no right of continued access to the Services or to any particular item of Content. You agree that you will not rely on us to keep a copy of or make available any Content that is or was available on or through the Services, including Content which you have Submitted to the Services. We shall have no liability in the event that you are unable to access an item of Content due to its removal from the Services, whether by us or by the relevant User.

16.3 We may change the features of any type of Account, 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 aspect of the Services from time to time. In the event of any increase in the price, art. 4.2 will apply. In the event of any material reduction in the features of any aspect of the Services 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.

16.4 For the avoidance of doubt, we shall not at any time be obliged to provide any adaptations, enhancements and/or modifications to Services, including any updates, patches, bug-fixes and/or upgrades to the Services or any new versions and/or releases of the Services which incorporate new features or functions.

17. TERMINATION

17.1 Termination by us: In our sole and absolute discretion, we may with immediate effect upon giving you notice, terminate your access to the Services (or any part thereof) and/or disable your Account for any reason whatsoever, including a breach of any of the Agreement, or if we believe that you have violated or acted inconsistently with any terms or conditions set out herein, or if in our opinion or the opinion of any regulatory authority, tribunal or court of law, it is not suitable to continue providing any aspect of the Services.

17.2 Consequences of termination by BEATSURFING : If the Termination occurs to the initiative of BEATSURFING for any reason whatsoever, all rights and/or licences granted to you under these Terms of Use shall immediately cease and terminate and you shall forthwith cease the use of the Services. In the event of termination of the Agreement due to the User’s fault, the User will not be able to claim any refund if he made purchases within the Service or if you had a Subscription, and terminate this Agreement before the end of such Subscription Period.

17.3 Termination by you: As an unlocked user, your unlock account will terminate at the end of the unlock period. You will still have access to the app and benefit from what you used during your unlock period. 

If you made purchases within the Service or if you had a Subscription and terminate this Agreement before the end of such Subscription Period, we are unable to offer any refund for any unexpired period of your Subscription.

NOTE THAT ALL YOUR CONTENT IS STORED ON YOUR DEVICE. THEREFORE, WE DO NOT STORE YOUR DATA AND CONTENT. IF YOU DELETE THE APPLICATION, YOUR CONTENT WILL ALSO BE DELETED.

If you decide to unsubscribe your unlock account will still be active until the end of your unlocking  period (12 months). Once the unlocking period has expired, the user will still be able to retrieve their content. BUT IF YOU DELETE THE APPLICATION, YOUR CONTENT WILL ALSO BE DELETED. 

User’s attention is drawn to the importance of backing up and exporting its data before Terminating the Agreement because it will no longer have the same access once the termination has occurred.

However, as long as you do not delete the Application, you can still access the Service provided by BEATSURFING. Once your unlock period expires, if you continue to use and/or access the Services, the Agreement will continue to apply to you notwithstanding that you are no longer an Unlocked User. You will then be considered as a Free User still submitted to the Agreement. As you will be back as a Free User, you will only access the content available during your unlocking period.

17.5 Your Content upon termination: Once your Account has been terminated, all Content residing in your Account or pertaining to activity from your Account, will, within a commercially reasonable and practicable time, be irretrievably deleted from our servers, except to the extent that we are obliged or permitted to retain such Content, data or information for a certain period of time in accordance with applicable laws and regulations and/or to protect our legitimate business interests. We assume no liability for any Content, data or information that is irretrievably deleted following any termination of your Account. We are not able to provide you with any .csv or other similar file of data relating to activity associated with your Account, whether before or after termination of your Account.

17.6 Survival of terms: The following provisions of these Terms of Use will continue to apply after the termination of your Account and/or the termination of these Terms of Use:  5.1-5.4, 5.8, 8, 18.

18. GENERAL

18.1 Binding and conclusive: The Parties expressly agree to accept electronic documents as evidence.  You acknowledge and agree that any records maintained by us or our service providers relating to or in connection with the Services shall be binding and conclusive on you for all purposes whatsoever and shall be conclusive evidence of any information and/or data transmitted between us and you. You hereby agree that all such records are admissible in evidence and that you shall not challenge or dispute the admissibility, reliability, accuracy or the authenticity of such records merely on the basis that such records are in electronic form or are the output of a computer system, and you hereby waive any of your rights, if any, to so object.

18.2 Sub-contracting and delegation: We reserve the right to delegate or sub-contract the performance of any of our functions in connection with the Services and reserve the right to use any service providers, subcontractors and/or agents on such terms as we deem appropriate.The User understands that BEATSURFING cannot provide more guarantees than it receives from its own subcontractors. BEATSURFING uses reputable contractors and subcontractors to perform various services.

18.3 Assignment: You may not assign your rights or obligations under these Terms of Use in whole or in part, to any Third Party without our prior written consent. We may assign our rights and (to the extent permitted by law) obligations under these Terms of Use, 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 Druw Audio.

18.4 Force Majeure: We shall not be liable for non-performance, error, interruption or delay in the performance of our obligations under the Agreement (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Services’ contents if this is due, in whole or in part, directly or indirectly to an event or failure which is beyond our reasonable control.

18.5 Severability: The invalidity or unenforceability of any of the provisions in the Agreement shall not adversely affect or impair the validity or enforceability of the remaining provisions of the Agreement.Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement Article that retains, to the extent possible, the economic balance and intent of the Parties as reflected in the deleted Article.

18.6 Waiver: In any event, our failure to enforce the Agreement shall not constitute a waiver of any terms of the Agreement, and such failure shall not affect the right later to enforce the Agreement. We would still be entitled to use our rights and remedies in any other situation including where you breach the Agreement.

18.7 Entire Agreement: These Terms of Use, together with our Policies, constitute the entire agreement between you and us with respect to your use of and access to the Services, and supersedes any prior agreement or representation, whether oral or written, between you and us. Any modifications to the Agreement must be made in writing.

18.8 Rights of Third Parties: A person or entity who is not a party to the Agreement shall have no right under laws to enforce any terms of the Agreement, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Clause shall affect the rights of any permitted assignee or transferee of the Agreement.

18.9. The Agreement is written in English. The translations are provided for information purposes only. In the event of a difference or contradiction between the Agreement and its translations, the Agreement in English shall prevail.

18.10 If the Agreement is concluded remotely, for example via the website of BEATSURFING when the User creates his Account or buys a Sample, the User acknowledges that he/she expressly requests access to the service immediately and that he/she therefore waives his/her right of withdrawal in accordance with articles VI.45,11° and article VI.53, 1° of the Belgian Code of Economic Law. 

18.11 Applicable Law and Jurisdiction: The law applicable to the Agreement, including its conclusion, interpretation, performance, resolution and all disputes relating thereto, shall be Belgian law, to the exclusion of all others.

18.12 Dispute Resolution: Notwithstanding any imperative legal provision of to the contrary, any dispute, controversy or difference of opinion arising out of or in connection with the Agreement which cannot be settled amicably by parties to the Agreement, including any question as to the validity, existence or termination of these Terms of Use and/or this Clause 15.10, shall be resolved by arbitration in Belgium conducted in French by a single arbitrator in accordance with the Arbitration Rules of the C.A.E. (Centre d’Arbitrage de l’Euregio), which rules are deemed to be incorporated by reference in this provision. The decision of the arbitrator shall be final and binding on all the parties to this Agreement.